United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
The UK Military Manual (1958) prohibits measures against protected persons (prisoners of war, civilians) which would cause physical suffering, including torture and brutal treatment.
The manual restates the provisions of common Article 3 of the 1949 Geneva Conventions.
The manual provides that “torture or inhuman treatment” of prisoners of war is a grave breach of the 1949 Geneva Conventions.
The UK LOAC Pamphlet (1981) provides that the “wounded and sick of the opposing forces must not be tortured”.
With respect to prisoners of war, the Pamphlet states that “a PW [prisoner of war] is not required to provide any further information and no physical or mental torture nor any form of coercion may be used to obtain it” and adds that “in no case, may disciplinary punishments be inhumane, brutal or dangerous to health”.
With regard to non-international armed conflicts, the Pamphlet restates common Article 3 of the 1949 Geneva Conventions.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
The following acts are prohibited “at any time and in any place whatsoever”:
a. violence to the life, health or physical or mental well-being of persons, in particular:
(2) torture of all kinds, whether physical or mental;
b. outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault.
In its chapter on prisoners of war, the manual states that it is forbidden to use “any form of torture or cruelty” to punish prisoners.
With regard to internal armed conflict, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
Under the terms of Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply “as a minimum”, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment.
Lastly, in its chapter on enforcement of the law of armed conflict, the manual states:
Grave breaches under the Geneva Conventions consist of any of the following acts against persons or property protected under the provisions of the relevant convention:
b. torture or inhuman treatment, including biological experiments;
c. wilfully causing great suffering or serious injury to body or health.
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] conventions”.
Under the UK ICC Act (2001), it is a punishable offence to commit genocide as defined in Article 6(b) of the 1998 ICC Statute, a crime against humanity as defined in Article 7(1)(f) of the 1998 ICC Statute, and a war crime as defined in Article 8(2)(a)(ii), (b)(xxi) and (c)(i) and (ii) of the 1998 ICC Statute.
The UK Armed Forces Act (2006) states:
23 Disgraceful conduct of a cruel or indecent kind
(1) A person subject to service law commits an offence if—
(a) he does an act which is cruel or indecent; and
(b) his doing so is disgraceful.
(2) In this section “act” includes an omission and the reference to the doing of an act is to be read accordingly.
In its judgment in the Heering case
in 1946, the UK Military Court at Hanover found that acts of “ill-treatment of prisoners of war in violation of the laws and usages of war causing their death, for example by forced marches with insufficient food or medical supplies,” amounted to war crimes.
In 2005, in A and others v. Secretary of State for the Home Department (No 2), the UK House of Lords was called upon to decide whether the UK Special Immigration Appeals Commission (SIAC), when hearing an appeal by a person certified and detained under the 2001 Anti-terrorism, Crime and Security Act, was permitted to receive evidence which was or may have been procured by means of torture by foreign State officials, without the complicity of UK authorities.
In a 2004 judgment (A and others v. Secretary of State for the Home Department,  EWCA Civ 1123, Judgment of 11 August 2004), a majority of the England and Wales Court of Appeal had dismissed appeals against the admission of such evidence by the SIAC.
The House of Lords unanimously reversed the decision of the Court of Appeal, holding that, first, the SIAC was not permitted to admit evidence of the kind described above, and that, second, where there were reasonable grounds for suspecting that material had been obtained in such a way, the onus was upon the SIAC to make further inquiries. Third, with regard to the test to be applied by the SIAC in deciding whether material could be admitted, the majority (Lord Bingham, Lord Nicholls and Lord Hoffmann dissenting) held that only where it was established, on the basis of practicable inquiries, that, on the balance of probabilities, material had indeed been obtained through torture by foreign State officials, it had to be excluded.
With regard to the first issue, the admissibility as evidence, Lord Bingham stated, the other Lords agreeing:
1. May the Special Immigration Appeals Commission (“SIAC”), a superior court of record established by statute, when hearing an appeal under section 25 of the Anti-terrorism, Crime and Security Act 2001 by a person certified and detained under sections 21 and 23 of that Act, receive evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities? That is the central question which the House must answer in these appeals. The appellants, relying on the common law of England, on the European Convention on Human Rights and on principles of public international law, submit that the question must be answered with an emphatic negative. The Secretary of State agrees that this answer would be appropriate in any case where the torture had been inflicted by or with the complicity of the British authorities. He further states that it is not his intention to rely on, or present to SIAC or to the Administrative Court in relation to control orders, evidence which he knows or believes to have been obtained by a third country by torture. This intention is, however, based on policy and not on any acknowledged legal obligation. Like any other policy it may be altered, by a successor in office or if circumstances change. The admission of such evidence by SIAC is not, he submits, precluded by law. Thus he contends for an affirmative answer to the central question stated above …
The Anti-terrorism, Crime and Security Act 2001
3. The 2001 Act was this country’s legislative response to the grave and inexcusable crimes committed in New York, Washington DC and Pennsylvania on 11 September 2001, and manifested the government’s determination to protect the public against the dangers of international terrorism. Part 4 of the Act accordingly established a new regime, applicable to persons who were not British citizens, whose presence in the United Kingdom the Secretary of State reasonably believed to be a risk to national security and whom the Secretary of State reasonably suspected of being terrorists as defined in the legislation. By section 21 of the Act he was authorised to issue a certificate in respect of any such person, and to revoke such a certificate. Any action of the Secretary of State taken wholly or partly in reliance on such a certificate might be questioned in legal proceedings only in a prescribed manner.
4. Sections 22 and 23 of the Act recognised that it might not, for legal or practical reasons, be possible to deport or remove from the United Kingdom a suspected international terrorist certified under section 21, and power was given by section 23 to detain such a person, whether temporarily or indefinitely. This provision was thought to call for derogation from the provisions of article 5(1)(f) of the European Convention, which it was sought to effect by a Derogation Order, the validity of which was one of the issues in the earlier stages of the proceedings.
5. Section 25 of the Act enables a person certified under section 21 to appeal to SIAC against his certification …
6. SIAC was established by the Special Immigration Appeals Commission Act 1997, which sought to reconcile the competing demands of procedural fairness and national security in the case of foreign nationals whom it was proposed to deport on the grounds of their danger to the public …
7. The rules applicable to these appeals are the Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034). Part 3 of the Rules governs appeals under section 25 of the 2001 Act … Rule 44(3) provides that SIAC “may receive evidence that would not be admissible in a court of law” …
The Common Law
10. The appellants submit that the common law forbids the admission of evidence obtained by the infliction of torture, and does so whether the product is a confession by a suspect or a defendant and irrespective of where, by whom or on whose authority the torture was inflicted.
11. It is, I think, clear that from its very earliest days the common law of England set its face firmly against the use of torture. Its rejection of this practice was indeed hailed as a distinguishing feature of the common law, the subject of proud claims by English jurists such as Sir John Fortescue …, Sir Thomas Smith …, Sir Edward Coke … Sir William Blackstone …, and Sir James Stephen … That reliance was placed on sources of doubtful validity, such as chapter 39 of Magna Carta 1215 and Felton’s Case as reported by Rushworth … did not weaken the strength of received opinion. The English rejection of torture was also the subject of admiring comment by foreign authorities such as Beccaria … and Voltaire … This rejection was contrasted with the practice prevalent in the states of continental Europe who, seeking to discharge the strict standards of proof required by the Roman-canon models they had adopted, came routinely to rely on confessions procured by the infliction of torture … In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.
12. Despite this common law prohibition, it is clear from the historical record that torture was practised in England in the 16th and early 17th centuries. But this took place pursuant to warrants issued by the Council or the Crown, largely (but not exclusively) in relation to alleged offences against the state, in exercise of the Royal prerogative … Thus the exercise of this royal prerogative power came to be an important issue in the struggle between the Crown and the parliamentary common lawyers which preceded and culminated in the English civil war. By the common lawyers torture was regarded as … “totally repugnant to the fundamental principles of English law” and “repugnant to reason, justice, and humanity.” One of the first acts of the Long Parliament in 1640 was, accordingly, to abolish the Court of Star Chamber, where torture evidence had been received, and in that year the last torture warrant in our history was issued. Half a century later, Scotland followed the English example, and in 1708, in one of the earliest enactments of the Westminster Parliament after the Act of Union in 1707, torture in Scotland was formally prohibited …
As Jardine put in (op. cit., p 13):
“As far as authority goes, therefore, the crimes of murder and robbery are not more distinctly forbidden by our criminal code than the application of the torture to witnesses or accused persons is condemned by the oracles of the Common law.”
This condemnation is more aptly categorised as a constitutional principle than as a rule of evidence.
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 …, there is an unsurprising paucity of English judicial authority on this subject. In Pearse v Pearse (1846) …, 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  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.
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  AC 599, 609−610, R v Harz and Power  AC 760, 817, and Lam Chi-ming v The Queen  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 … 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  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  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 … 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  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  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  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 … 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  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  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  1 AC 42 and R v Latif  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)  UKHL 53,  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”.
The European Convention on Human Rights
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)  UKHL 1,  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  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  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  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.
Public international law
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 … 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 … 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.
(5) Court decisions in many countries have given effect directly or indirectly to article 15 of the Torture Convention.
(6) The rationale of the exclusionary rule in article 15 is found not only in the general unreliability of evidence procured by torture but also in its offensiveness to civilised values and its degrading effect on the administration of justice.
(7) Measures directed to counter the grave dangers of international terrorism may not be permitted to undermine the international prohibition of torture.
It is necessary to examine these propositions in a little detail.
(1) Interpretation of the Convention in a wider international context.
29. Article 31 of the Vienna Convention on the Law of Treaties, reflecting principles of customary international law, provides in article 31(3)(c) that in interpreting a treaty there shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties. The European Court has recognised this principle … and in Al-Adsani v United Kingdom (2001) 34 EHRR 273, para 55, it said (footnotes omitted):
“55. The Court must next assess whether the restriction was proportionate to the aim pursued. It recalls that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, and that Article 31(3)(c) of that treaty indicates that account is to be taken of ‘any relevant rules of international law applicable in the relations between the parties’. The Convention, in including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention’s special character as a human rights treaty, and it must also take the relevant rules of international law into account. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.”
The Court has in its decisions invoked a wide range of international instruments, including the United Nations Convention on the Rights of the Child 1989 and the Beijing Rules …, the Council of Europe Standard Minimum Rules for the Treatment of Prisoners … and the 1975 Declaration referred to in para 31 below … More pertinently to these appeals, the Court has repeatedly invoked the provisions of the Torture Convention … In Soering v United Kingdom (1989) 11 EHRR 439, para 88, the Court said (footnotes omitted):
“Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition on torture and on inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard. The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3. That the abhorrence of torture has such implications is recognised in Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that ‘no State Party shall … extradite a person where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention. It would hardly be compatible with the underlying values of the Convention, that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.”
(2) The international prohibition of torture.
30. The preamble to the United Nations Charter (1945) recorded the determination of member states to reaffirm their faith in fundamental human rights and the dignity and worth of the human person and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. The Charter was succeeded by the Universal Declaration of Human Rights 1948, the European Convention 1950 and the International Covenant on Civil and Political Rights 1966, all of which (in articles 5, 3 and 7 respectively, in very similar language) provided that no one should be subjected to torture or inhuman or degrading treatment.
31. On 9 December 1975 the General Assembly of the United Nations, without a vote, adopted Resolution 3452 (XXX), a Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This included (in article 1) a definition of torture as follows: …
Action was then taken to prepare a convention. This action culminated in the Torture Convention, which came into force on 26 June 1987. All member states of the Council of Europe are members with the exception of Moldova, Andorra and San Marino, the last two of which have been signed but not yet ratified.
32. The Torture Convention contained, in article 1, a definition of torture: …
It is noteworthy that the torture must be inflicted by or with the complicity of an official, must be intentional, and covers treatment inflicted for the purpose of obtaining information or a confession.
33. It is common ground in these proceedings that the international prohibition of the use of torture enjoys the enhanced status of a jus cogens or peremptory norm of general international law. For purposes of the Vienna Convention, a peremptory norm of general international law is defined in article 53 to mean “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)  1 AC 147, 197−199, the jus cogens nature of the international crime of torture, the subject of universal jurisdiction, was recognised. The implications of this finding were fully and authoritatively explained by the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija  ICTY 3, 10 December 1998 …:
There can be few issues on which international legal opinion is more clear than on the condemnation of torture. Offenders have been recognised as the “common enemies of mankind” (Demjanjuk v Petrovsky 612 F Supp 544 (1985), 566, Lord Cooke of Thorndon has described the right not to be subjected to inhuman treatment as a “right inherent in the concept of civilisation” (Higgs v Minister of National Security  2 AC 228, 260), the Ninth Circuit Court of Appeals has described the right to be free from torture as “fundamental and universal” (Siderman de Blake v Argentina 965 F 2d 699 (1992), 717) and the UN Special Rapporteur on Torture (Mr Peter Koojimans) has said that “If ever a phenomenon was outlawed unreservedly and unequivocally it is torture” (Report of the Special Rapporteur on Torture, E/CN.4/1986/15, para 3).
(3) The duty of states in relation to torture.
34. As appears from the passage just cited, the jus cogens erga omnes nature of the prohibition of torture requires member states to do more than eschew the practice of torture. In Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5)  UKHL 19,  2 AC 883, paras 29, 117, the House refused recognition to conduct which represented a serious breach of international law. This was, as I respectfully think, a proper response to the requirements of international law. In General Comment 20 (1992) on article 7 of the ICCPR [International Covenant on Civil and Political Rights], the UN Human Rights Committee said, in para 8:
“The Committee notes that it is not sufficient for the implementation of article 7 to prohibit such treatment or punishment or to make it a crime. States parties should inform the Committee of the legislative, administrative, judicial and other measures they take to prevent and punish acts of torture and cruel, inhuman and degrading treatment in any territory under their jurisdiction.”
Article 41 of the International Law Commission’s draft articles on Responsibility of States for internationally wrongful acts (November 2001) requires states to cooperate to bring to an end through lawful means any serious breach of an obligation under a peremptory norm of general international law. An advisory opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004, General List No 131), para 159 explained the consequences of the breach found in that case: …
There is reason to regard it as a duty of states, save perhaps in limited and exceptional circumstances, as where immediately necessary to protect a person from unlawful violence or property from destruction, to reject the fruits of torture inflicted in breach of international law. As McNally JA put it in S v Nkomo 1989 (3) ZLR 117, 131: “It does not seem to me that one can condemn torture while making use of the mute confession resulting from torture, because the effect is to encourage torture.”
(4) Article 15 of the Torture Convention.
35. Article 12 of the 1975 Declaration provided:
“Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings.”
Article 15 of the Torture Convention repeats the substance of this provision, subject to a qualification:
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
The additional qualification makes plain the blanket nature of this exclusionary rule. It cannot possibly be read, as counsel for the Secretary of State submits, as intended to apply only in criminal proceedings. Nor can it be understood to differentiate between confessions and accusatory statements, or to apply only where the state in whose jurisdiction the proceedings are held has inflicted or been complicit in the torture. It would indeed be remarkable if national courts, exercising universal jurisdiction, could try a foreign torturer for acts of torture committed abroad, but could nonetheless receive evidence obtained by such torture. The matter was succinctly put in the Report by Mr Alvaro Gil-Robles, the Council of Europe Commissioner for Human Rights, in his Report on his visit to the United Kingdom in November 2004 (8 June 2005, Comm DH (2005)6):
“torture is torture whoever does it, judicial proceedings are judicial proceedings, whatever their purpose the former can never be admissible in the latter.”
(5) State practice.
36. A Committee against Torture was established under article 17 of the Torture Convention to monitor compliance by member states. The Committee has recognised a duty of states, if allegations of torture are made, to investigate them … The clear implication is that the evidence should have been excluded had the complaint been verified.
37. In Canada, article 15 of the Torture Convention has been embodied in the criminal code: see India v Singh 108 CCC (3d) 274 (1996), para 20. In France, article 15 has legal effect (French Republic v Haramboure, Cour de Cassation, Chambre Criminelle, 24 January 1995, No. de pourvoi 94−81254), and extradition to Spain was refused where allegations that a witness statement had been procured by torture in Spain was judged not to have been adequately answered (Le Ministère Public v Irastorza Dorronsoro, Cour d’Appel de Pau, No 238/2003, 16 May 2003). In the Netherlands, it was held by the Supreme Court to follow from article 3 of the European Convention and article 7 of the ICCPR that if witness statements had been obtained by torture they could not be used as evidence: Pereira, 1 October 1996, nr 103.094, para 6.2. In Germany, as in France, article 15 has legal effect: El Motassadeq, decision of the Higher Regional Court of Hamburg, 14 June 2005, para 2.
38. In the United States, torture was recognised to be prohibited by the law of nations even before the Torture Convention was made: Filartiga v Peña-Irala 630 F 2d 876 (1980). Earlier still, it had been said to be “unthinkable that a statement obtained by torture or by other conduct belonging only in a police state should be admitted at the government’s behest in order to bolster its case”: LaFrance v Bohlinger 499 F 2d 29 (1974), para 6.
(6) The rationale of the exclusionary rule.
39. In their work on The United Nations Convention against Torture (1988), p 148, Burgers and Danelius suggest that article 15 of the Torture Convention is based on two principles:
“The rule laid down in article 15 would seem to be based on two different considerations. First of all, it is clear that a statement made under torture is often an unreliable statement, and it could therefore be contrary to the principle of ‘fair trial’ to invoke such a statement as evidence before a court. Even in countries whose court procedures are based on a free evaluation of all evidence, it is hardly acceptable that a statement made under torture should be allowed to play any part in court proceedings.
In the second place, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed, and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture.”
It seems indeed very likely that the unreliability of a statement or confession procured by torture and a desire to discourage torture by devaluing its product are two strong reasons why the rule was adopted. But it also seems likely that the article reflects the wider principle expressed in article 69(7) of the Rome Statute of the International Criminal Court, which has its counterpart in the Rules of Procedure and Evidence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda:
“Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if:
(a) the violation casts substantial doubt on the reliability of the evidence; or
(b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.”
The appellants contend that admission as evidence against a party to legal proceedings of a confession or an accusatory statement obtained by inflicting treatment of the severity necessary to fall within article 1 of the Torture Convention will “shock the community”, infringe that party’s rights and the fairness of the proceedings (R v Oickle: see para 17 above), shock the judicial conscience (United States v Hensel 509 F Supp 1364 (1981), p 1372), abuse or degrade the proceedings (United States v Toscanino 500 F 2d 267 (1974), p 276), and involve the state in moral defilement (The People (Attorney General) v O’Brien: see para 17 above).
(7) The impact of terrorism
40. The European Court has emphasised that article 3 of the European Convention is an absolute prohibition, not derogable in any circumstances. In Chahal v United Kingdom (1996) 23 EHRR 413, para 79, it ruled:
“79. Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.”
That the Torture Convention, including article 15, enjoys the same absolute quality is plain from the text of article 2, quoted in para 32 above.
41. It is true, as the Secretary of State submits, that States Members of the United Nations and the Council of Europe have been strongly urged since 11 September 2001 to cooperate and share information in order to counter the cruel and destructive evil of terrorism. But these calls have been coupled with reminders that human rights, and international and humanitarian law, must not be infringed or compromised. Thus, while the Council of Europe’s Parliamentary Assembly recommendation 1534 of 26 September 2001 refers to co-operation “on the basis of the Council of Europe’s values and legal instruments”, it also refers to Parliamentary Assembly Resolution 1258, para 7 of which states:
“These attacks have shown clearly the real face of terrorism and the need for a new kind of response. This terrorism does not recognise borders. It is an international problem to which international solutions must be found based on a global political approach. The world community must show that it will not capitulate to terrorism, but that it will stand more strongly than before for democratic values, the rule of law and the defence of human rights and fundamental freedoms.”
The Council of Europe Convention on the Prevention of Terrorism of 16 May 2005, recalling in its preamble
“the need to strengthen the fight against terrorism and reaffirming that all measures taken to prevent or suppress terrorist offences have to respect the rule of law and democratic values, human rights and fundamental freedoms as well as other provisions of international law, including, where applicable, international humanitarian law”,
went on to provide:
“Article 3 − National prevention policies
1 Each Party shall take appropriate measures, particularly in the field of training of law enforcement authorities and other bodies, and in the fields of education, culture, information, media and public awareness raising, with a view to preventing terrorist offences and their negative effects while respecting human rights obligations as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law.”
Other similar examples could be given.
42. The United Nations pronouncements are to the same effect. Thus Security Council resolution 1373 of 28 September 2001 called for co-operation and exchange of information to prevent terrorist acts, but also reaffirmed resolution 1269 of 19 October 1999 which called for observance of the principles of the UN Charter and the norms of international law, including international humanitarian law. By Security Council resolution 1566 of 8 October 2004 states were reminded
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, and in particular international human rights, refugee and humanitarian law.”
Again, other similar examples could be given. The General Assembly has repeatedly made the same point: see, for example, resolution 49/60 of 9 December 1994; resolution 51/210 of 17 December 1996; and resolution 59/290 of 13 April 2005. The Secretary General of the UN echoed the same theme in statements of 4 October 2002, 6 March 2003 and 10 March 2005.
43. The events of 11 September prompted the Committee against Torture to issue a statement on 22 November 2001 (CAT/C/XXVII/Misc 7) in which it said:
“The Committee against Torture condemns utterly the terrorist attacks of September 11 and expresses its profound condolences to the victims, who were nationals of some 80 countries, including many State parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee is mindful of the terrible threat to international peace and security posed by these acts of international terrorism, as affirmed in Security Council resolution 1368. The Committee also notes that the Security Council in resolution 1373 identified the need to combat by all means, in accordance with the Charter of the United Nations, the threats caused by terrorist acts.
The Committee against Torture reminds State parties to the Convention of the non-derogable nature of most of the obligations undertaken by them in ratifying the Convention.
The obligations contained in Articles 2 (whereby ‘no exceptional circumstances whatsoever may be invoked as a justification of torture’), 15 (prohibiting confessions extorted by torture being admitted in evidence, except against the torturer), and 16 (prohibiting cruel, inhuman or degrading treatment or punishment) are three such provisions and must be observed in all circumstances.
The Committee against Torture is confident that whatever responses to the threat of international terrorism are adopted by State parties, such responses will be in conformity with the obligations undertaken by them in ratifying the Convention against Torture.”
A statement to similar effect was made by the Committee against Torture, the Special Rapporteur on Torture, the Chairperson of the 22nd session of the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture and the Acting United Nations Commissioner for Human Rights on 26 June 2004 (CAT Report to the General Assembly, A/59/44 (2004), para 17). In its Conclusions and Recommendations on the United Kingdom dated 10 December 2004 (CAT/C/CR/33/3), having received the United Kingdom’s fourth periodic report, the Committee welcomed the Secretary of State’s indication that he did not intend to rely upon or present evidence where there is a knowledge or belief that torture has taken place but recommended that this be appropriately reflected in formal fashion, such as legislative incorporation or undertaking to Parliament, and that means be provided whereby an individual could challenge the legality of any evidence plausibly suspected of having been obtained by torture in any proceeding.
44. This recommendation followed the judgment of the Court of Appeal in these appeals. Concern at the effect of that judgment was also expressed by the International Commission of Jurists on 28 August 2004, which declared that “Evidence obtained by torture, or other means which constitute a serious violation of human rights against a defendant or third party, is never admissible and cannot be relied on in any proceedings,” and by the Council of Europe Commissioner for Human Rights, Mr Gil-Robles in his Report cited in para 35 above. In a Report of 9 June 2005 on a visit made to the United Kingdom in March 2004, the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf (2005) 10), para 31, observed:
“31. During the 2004 visit, several persons whom the delegation met were very concerned that the SIAC could apparently take into consideration evidence that might have been obtained elsewhere by coercion, or even by torture. Such an approach would contravene universal principles governing the protection of human rights and the prohibition of torture and other forms of ill-treatment, to which the United Kingdom has adhered.”
In Resolution 1433, adopted on 26 April 2005, on the Lawfulness of Detentions by the United States in Guantanamo Bay, the Council of Europe Parliamentary Assembly called on the United States to cease the practice of rendition and called on member states to respect their obligation under article 15 of the Torture Convention.
45. The House has not been referred to any decision, resolution, agreement or advisory opinion suggesting that a confession or statement obtained by torture is admissible in legal proceedings if the torture was inflicted without the participation of the state in whose jurisdiction the proceedings are held, or that such evidence is admissible in proceedings related to terrorism.
The Secretary of State’s Case
46. While counsel for the Secretary of State questions the effect and applicability of some of the material on which the appellants rely, he founds his case above all on the statutory scheme established by Part 4 of the 2001 Act. He builds on the appellants’ acceptance that the Secretary of State may, when forming the reasonable belief and suspicion required for certification under section 21, and when acting on that belief to arrest, search and detain a suspect, act on information which has or may have been obtained by torture inflicted in a foreign country without British complicity. That acceptance, he submits, supports the important and practical need for the security services and the Secretary of State to obtain intelligence and evidence from foreign official sources, some of which (in the less progressive countries) might dry up if their means of obtaining intelligence and evidence were the subject of intrusive enquiry. But it would create a mismatch which Parliament could not have intended if the Secretary of State were able to rely on material at the certification stage which SIAC could not later receive. It would, moreover, emasculate the statutory scheme, which is specifically designed to enable SIAC, constituted as it is, to see all relevant material, even such ordinarily inadmissible material as may be obtained on warranted intercepts. This is reflected in rule 44(3) of the applicable Rules, which dispenses with all rules of evidence, including any that might otherwise preclude admission of evidence obtained by torture in the circumstances postulated. This is not a negligible argument, and a majority of the Court of Appeal broadly accepted it. There are, however, in my opinion, a number of reasons why it must be rejected.
47. I am prepared to accept (although I understand the interveners represented by Mr Starmer QC not to do so) that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6. Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.
48. This is not an unusual position. It arises whenever the Secretary of State (or any other public official) relies on information which the rules of public interest immunity prevent him adducing in evidence: Makanjuola v Commissioner of Police of the Metropolis  3 All ER 617, 623 e to j; R v Chief Constable of West Midlands Police, Ex p Wiley  1 AC 274, 295F−297C. It is a situation which arises where action is based on a warranted interception and there is no dispensation which permits evidence to be given. This may be seen as an anomaly, but (like the anomaly to which the rule in R v Warickshall gives rise) it springs from the tension between practical common sense and the need to protect the individual against unfair incrimination. The common law is not intolerant of anomaly.
49. There would be a much greater anomaly if the duty of SIAC, hearing an appeal under section 25, were to decide whether the Secretary of State had entertained a reasonable belief and suspicion at the time of certification. But, as noted above in para 5, SIAC’s duty is to cancel the certificate if it considers that there “are” no reasonable grounds for a belief or suspicion of the kind referred to. This plainly refers to the date of the hearing. The material may by then be different from that on which the Secretary of State relied. He may have gathered new and better information; or some of the material on which he had relied may have been discredited; or he may have withdrawn material which he was ordered but was unwilling to disclose. SIAC must act on the information lawfully before it to decide whether there are reasonable grounds at the time of its decision.
50. I am not impressed by the argument based on the practical undesirability of upsetting foreign regimes which may resort to torture. On the approach of the Court of Appeal majority, third party torture evidence, although legally admissible, must be assessed by SIAC in order to decide what, if any, weight should be given to it. This is an exercise which could scarcely be carried out without investigating whether the evidence had been obtained by torture, and, if so, when, by whom, in what circumstances and for what purpose. Such an investigation would almost inevitably call for an approach to the regime which is said to have carried out the torture.
51. The Secretary of State is right to submit that SIAC is a body designed to enable it to receive and assess a wide range of material, including material which would not be disclosed to a body lacking its special characteristics. And it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power on SIAC to receive third party torture evidence. 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. Counsel for the Secretary of State acknowledges that during the discussions on Part 4 the subject of torture was never the subject of any thought or any allusion. The matter is governed by the principle of legality very clearly explained by my noble and learned friend Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms  2 AC 115, 131:
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”
It trivialises the issue before the House to treat it as an argument about the law of evidence. The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer.
52. I accept the broad thrust of the appellants’ argument on the common law. The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention. The answer to the central question posed at the outset of this opinion is to be found not in a governmental policy, which may change, but in law.
Inhuman or degrading treatment
53. The appellants broaden their argument to contend that all the principles on which they rely apply to inhuman and degrading treatment, if inflicted by an official with the requisite intention and effect, as to torture within the Torture Convention definition. It is, of course, true that article 3 of the European Convention (and the comparable articles of other human rights instruments) lump torture and inhuman or degrading treatment together, drawing no distinction between them. The European Court did, however, draw a distinction between them in Ireland v United Kingdom (1978) 2 EHRR 25, holding that the conduct complained of was inhuman or degrading but fell short of torture, and article 16 of the Torture Convention draws this distinction very expressly:
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.”
Ill-treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply to torture, and for the present at least must continue to do so. It would, on the other hand, be wrong to regard as immutable the standard of what amounts to torture. This is a point made by the European Court in Selmouni v France (1999) 29 EHRR 403, paras 99−101 (footnotes omitted):
“99 The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. The Court therefore finds elements which are sufficiently serious to render such treatment inhuman and degrading. In any event, the Court reiterates that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.
100 In other words, it remains to establish in the instant case whether the ‘pain or suffering’ inflicted on Mr Selmouni can be defined as ‘severe’ within the meaning of Article 1 of the United Nations Convention. The Court considers that this ‘severity’ is, like the ‘minimum severity’ required for the application of Article 3, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.
101 The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture. However, having regard to the fact that the Convention is a ‘living instrument which must be interpreted in the light of present-day conditions’, the Court considers that certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.”
It may well be that the conduct complained of in Ireland v United Kingdom
, or some of the Category II or III techniques detailed in a J2 memorandum dated 11 October 2002 addressed to the Commander, Joint Task Force 170 at Guantanamo Bay, Cuba, (see The Torture Papers: The Road to Abu Ghraib
, ed K Greenberg and J Dratel, (2005), pp 227–228), would now be held to fall within the definition in article 1 of the Torture Convention.
With regard to the second issue, the SIAC’s obligation to initiate inquiries in the way given material had been obtained, Lord Bingham stated, the other Lords agreeing:
The burden of proof
54. The appellants contend that it is for a party seeking to adduce evidence to establish its admissibility if this is challenged. The Secretary of State submits that it is for a party seeking to challenge the admissibility of evidence to make good the factual grounds on which he bases his challenge. He supports this approach in the present context by pointing to the reference in article 15 of the Torture Convention to a statement “which is established to have been made as a result of torture.” There is accordingly said to be a burden on the appellant in the SIAC proceedings to prove the truth of his assertion.
55. I do not for my part think that a conventional approach to the burden of proof is appropriate in a proceeding where the appellant may not know the name or identity of the author of an adverse statement relied on against him, may not see the statement or know what the statement says, may not be able to discuss the adverse evidence with the special advocate appointed (without responsibility) to represent his interests, and may have no means of knowing what witness he should call to rebut assertions of which he is unaware. It would, on the other hand, render section 25 appeals all but unmanageable if a generalised and unsubstantiated allegation of torture were in all cases to impose a duty on the Secretary of State to prove the absence of torture. It is necessary, in this very unusual forensic setting, to devise a procedure which affords some protection to an appellant without imposing on either party a burden which he cannot ordinarily discharge.
56. The appellant must ordinarily, by himself or his special advocate, advance some plausible reason why evidence may have been procured by torture. This will often be done by showing that evidence has, or is likely to have, come from one of those countries widely known or believed to practise torture (although they may well be parties to the Torture Convention and will, no doubt, disavow the practice publicly). Where such a plausible reason is given, or where SIAC with its knowledge and expertise in this field knows or suspects that evidence may have come from such a country, 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. All will depend on the facts and circumstances of a particular case.
With regard to the third issue, the test to be applied by the SIAC in deciding whether, based on its inquiries, given material could be admitted, the majority stated:
Lord Hope of Craighead
(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 … 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 … 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 … 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 …
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
138. The courts’ deep-seated objection is to torture and to statements obtained by torture. The rejection of such statements is an exception to the general rule that relevant evidence is admissible even if it has been obtained unlawfully. On the other hand, the public interest does not favour SIAC rejecting statements that have not in fact been obtained by torture. More particularly, the public interest does not favour rejecting statements merely because there is a suspicion or risk that they may have been obtained in that way. Reports from various international bodies may well furnish grounds for suspicion that a country has been in the habit of using torture. That cannot be enough. To trigger the exclusion, it must be shown that the statement in question has been obtained by torture.
139. I draw support for that general approach from the judgment of the Grand Chamber of the European Court of Human Rights in Mamatkulov and Askarov v Turkey, 4 February 2005 …
140. As my noble and learned friend, Lord Hope of Craighead, has explained, the Hanseatic Oberlandesgericht in Hamburg adopted a somewhat similar approach in El Motassadeq NJW 2005, 2326 …
144. In the nature of the case and with the best will in the world, there is likely to be a limit to what can be discovered about what went on during an investigation by the authorities in another country. Foreign states can be asked, but cannot be forced, to provide information. How far such requests can be pushed without causing damage to international relations must be a matter for the judgment of the Government and not for SIAC or any court.
145. When everything possible has been done, it may turn out that the matter is left in doubt and that, using their expertise, SIAC cannot be satisfied on the balance of probabilities that the statement in question has been obtained by torture. If so, in my view, SIAC can look at the statement but should bear its doubtful origins in mind when evaluating it …
153. The issue on which I have found it most difficult to reach a satisfactory principled conclusion is that of the approach which SIAC should take to deciding when a statement should be rejected, an issue on which your Lordships have not found it possible to speak with one voice. I have been much exercised by the difficulties inherent in the acceptance of either of the views which have been expressed, but I am conscious of the importance of laying down a clearly defined and workable rule which can be applied by SIAC (or similar bodies which may have to deal with the same problem).
155. I agree with your Lordships that consideration of this question by the conventional approach to the burden of proof is both unhelpful and inappropriate … I accordingly agree with the view expressed by Lord Bingham (para 56 of his opinion) and Lord Hope (para 116) that once the appellant has raised in a general way a plausible reason why evidence adduced may have been procured by torture, the onus passes to SIAC to consider the suspicion, investigate it if necessary and so far as practicable and determine by reference to the appropriate test whether the evidence should be admitted and taken into account.
156. What that test should be is the issue on which your Lordships are divided. Lord Bingham is of the opinion (para 56) that if SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit it. Lord Hope, on the other hand, has propounded a different test, which he describes as putting the question which SIAC has to decide positively rather than negatively. It has to be established on the balance of probabilities that the particular piece of evidence was obtained by the use of torture; and unless it has in SIAC’s judgment been so established, after it has completed any investigation carried out and weighed up the material before it, then it must not reject it on that ground.
157. I have found the choice between these tests the most difficult part of this case. Lord Bingham has cogently described the difficulties facing an appellant before SIAC and the potential injustice which he sees as the consequence if the Hope test is adopted. Lord Hope for his part places some emphasis on the severity of the practical problems which would face SIAC in negativing the use of torture to obtain any given statement, and expresses his concern that it would constitute “an insuperable barrier for those who are doing their honest best to protect us”. In support of his view Lord Hope points in particular to the terms of article 15 of UNCAT, which requires states to ensure that any statement “which is established to have been made as a result of torture” shall not be invoked in any proceedings.
158. After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted by SIAC in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases if the members of SIAC use their considerable experience and their discernment wisely in scrutinising the provenance of statements propounded, as I am confident they will. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope’s view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out.
159. On this basis I would accordingly allow the appeals and make the order proposed.
Lord Brown of Eaton-under-Heywood
172. … I agree with Lord Hope of Craighead (at para 121 of his opinion) that SIAC should ask itself whether it is “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.” Only if this is established is the statement inadmissible. If, having regard to the evidence of a particular state’s general practices and its own inquiries, SIAC were to conclude that there is no more than a possibility that the statement was obtained by torture, then in my judgment this would not have been established and the statement would be admissible.
173. The difficulty I have with the “real risk” test espoused by certain of your Lordships, apart from the fact that classically such a test addresses future dangers (as, for example, the risk of torture or other article 3 ill-treatment which the European Court of Human Rights in Soering v United Kingdom (1989) 11 EHRR 439 understandably refused to countenance) rather than past uncertainties, is that it would require SIAC to ignore entirely (rather than merely discount to whatever extent it thought appropriate) any statement not proved to have been made voluntarily. That, at least, is how I understand the “real risk” test to apply: if SIAC were left in any substantial (ie other than minimal) doubt as to whether torture had been used, the statement would be shut out, however reliable it appeared to be and notwithstanding that SIAC concluded that it had probably been made voluntarily. That seems to me a surprising and unsatisfactory test. If I have misunderstood the proposed test and if all that it involves is SIAC shutting out a statement whenever they simply cannot decide one way or the other on the balance of probabilities whether it has been extracted by torture (a rare case one would suppose given the expertise of the tribunal) then my difficulty would be substantially lessened although I would still prefer the test favoured by Lord Hope of Craighead and Lord Rodger of Earlsferry.
174. It is one thing to say, as in Soering, that someone cannot be deported whilst there exists the possibility that he may be tortured – or, indeed, as the dissentient minority said in Mamatkulov and Askarov v Turkey (Application Nos 46827/99 and 46951/99, unreported, 4 February 2005), if they run a real risk of suffering a flagrant denial of justice – quite another to say that the integrity of the court’s processes and the good name of British justice requires that evidence be shut out whenever it cannot be positively proved to have been given voluntarily.
175. For these reasons, and for the reasons given by Lord Bingham and others of my noble and learned friends, I too would allow these appeals and make the order proposed.
[emphasis in original]
The minority favoured the following test:
Lord Bingham of Cornhill
56. … If SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit the evidence. Otherwise it should admit it. It should throughout be guided by recognition of the important obligations laid down in articles 3 and 5(4) of the European Convention and, through them, article 15 of the Torture Convention, and also by recognition of the procedural handicaps to which an appellant is necessarily subject in proceedings from which he and his legal representatives are excluded.
57. Since a majority of my noble and learned friends do not agree with the view I have expressed on this point, and since it is of practical importance, I should explain why I do not share their opinion.
58. I agree, of course, that the reference in article 15 to “any statement which is established to have been made as a result of torture” would ordinarily be taken to mean that the truth of such an allegation should be proved. That is what “established” ordinarily means. I would also accept that in any ordinary context the truth of the allegation should be proved by the party who makes it. But the procedural regime with which the House is concerned in this case, described in paragraphs 6–7 and 55 above, is very far from ordinary. A detainee may face the prospect of indefinite years of detention without charge or trial, and without knowing what is said against him or by whom. Lord Woolf CJ was not guilty of overstatement in describing an appellant to SIAC, if denied access to the evidence, as “undoubtedly under a grave disadvantage” (M v Secretary of State for the Home Department  EWCA Civ 324,  2 All ER 863, para 13). The special advocates themselves have publicly explained the difficulties under which they labour in seeking to serve the interests of those they are appointed to represent …
59. My noble and learned friend Lord Hope proposes, in paragraph 121 of his opinion, the following test: is it established, by means of such diligent enquiries 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? This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet. The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC because its source will not have been “established”.
60. The authorities relied on by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry to support their conclusion are of questionable value at most …
62. I regret that the House should lend its authority to a test which will undermine the practical efficacy of the Torture Convention and deny detainees the standard of fairness to which they are entitled under article 5(4) or 6(1) of the European Convention. The matter could not be more clearly put than by my noble and learned friend Lord Nicholls of Birkenhead in the closing paragraph of his opinion.
Lord Nicholls of Birkenhead
80. … I associate myself with the observations of Lord Bingham of Cornhill on the burden of proof where the admissibility of evidence is challenged before SIAC on the ground it may have been procured by torture. The contrary approach would place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge. In practice that would largely nullify the principle, vigorously supported on all sides, that courts will not admit evidence procured by torture. That would be to pay lip-service to the principle. That is not good enough.
98. That leaves the question of the burden of proof, on which I am in agreement with my noble and learned friend Lord Bingham of Cornhill. In proceedings in which the appellant to SIAC may have no knowledge of the evidence against him, it would be absurd to require him to prove that it had been obtained by torture. Article 15 of the Torture Convention, which speaks of the use of torture being “established”, could never have contemplated a procedure in which the person against whom the statement was being used had no idea of what it was or who had made it. It must be for SIAC, if there are reasonable grounds for suspecting that to have been the case (for example, because of evidence of the general practices of the authorities in the country concerned) to make its own inquiries and not to admit the evidence unless it is satisfied that such suspicions have been rebutted. One of the difficulties about the Secretary of State’s carefully worded statement that it would not be his policy to rely upon evidence “where there is a knowledge or belief that torture has taken place” is that it leaves open the question of how much inquiry the Secretary of State is willing to make. It appears to be the practice of the Security Services, in their dealings with those countries in which torture is most likely to have been used, to refrain, as a matter of diplomatic tact or a preference for not learning the truth, from inquiring into whether this was the case. It may be that in such a case the Secretary of State can say that he has no knowledge or belief that torture has taken place. But a court of law would not regard this as sufficient to rebut real suspicion and in my opinion SIAC should not do so.
[emphasis in original]
In 2010, in the Wheelhouse case, a UK Court Martial considered the case of a captain of the 45 Commando Royal Marines and a sergeant of the Commander Training Centre Royal Marines who were charged with committing a civil offence contrary to section 70 of the 1995 Army Act, namely assault occasioning actual bodily harm contrary to section 47 of the 1861 Offences against the Person Act, because they assaulted a detainee in a detention facility of UK armed forces in Afghanistan in 2009. The accused were found guilty and sentenced to dismissal with disgrace (captain of 45 Command Royal Marines) and dismissal (sergeant of Commander Training Centre Royal Marines). The Judge Advocate stated:
This was a sustained assault on an injured and unarmed prisoner, a middle aged Afghan man who was suspected of being part of a group who were attempting to lay an improvised explosive [device] … It is understandable that those who have seen the effects of these devices should feel a degree of hatred or emotion towards those who plant them especially when, as in Sergeant Leader’s case, they have lost friends. But acts such as these against unarmed prisoners are not only against the values and standards of our armed forces, they undermine everything which our armed forces are trying to achieve in Afghanistan and place the lives of personnel in even greater danger.
In 2003, in a reply to a written question in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, wrote:
International action against torture is a priority for the Foreign and Commonwealth Office. An anti-torture initiative to tackle torture throughout the world was launched in October 1998. Phase three of the initiative was launched on 26 June 2002. As part of this initiative, which included diplomatic activity, support for regional organisations and practical projects, the Foreign and Commonwealth Office launched two rounds of worldwide lobbying for the universal ratification of the UN Convention against Torture. Since we began lobbying 25 states have ratified. We plan to launch a third round of lobbying this year focusing on implementation of obligations as well as ratification. Last year the UK Government also undertook a widespread lobbying campaign to support the Optional Protocol to the UN Convention against Torture. We believe the Protocol offers the best means available to establish an effective international mechanism to combat torture through mandatory visits by national and international independent monitoring committees to places of detention in signatory states. The Optional Protocol was adopted at the UN General Assembly in December 2002. The UK Government are now working to secure early ratification.
The Foreign and Commonwealth Office continually updates its strategies for combating torture. This year an expert panel on torture prevention was set up to consolidate the work of the past four years and to advise on future strategy.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
I am pleased to be able to announce that the UK has taken a significant step towards ratification of the Optional Protocol to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). On 8 September, my honourable friend, Mr Rammell laid before Parliament an Explanatory Memorandum, which explains how the UK meets the provisions of the protocol.
We hope that the ratification process can be completed with the United Nations by the end of this year. This will make the UK one of the very first UN member states to have ratified the Optional Protocol. We signed the protocol on 26 June, becoming one of only 6 countries worldwide to have done so.
The UK is committed to the fight against torture. The Foreign and Commonwealth Office’s anti-torture initiative, launched in 1998, continues to provide a focus for us on this issue. The follow-up to our ratification of the OPCAT will be an important part of the current phase of the initiative. We will undertake a lobbying campaign urging other countries to sign, ratify and implement both the Convention Against Torture and the Optional Protocol.
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
8. On 26 June 2003, the United Kingdom signed the Optional Protocol to the Convention against Torture – one of the first countries in the world to do so. The Government believes the new instrument to be the best means available to establish an effective international mechanism to combat torture. It hopes to be able to ratify the Optional Protocol by the end of 2003. Once the United Kingdom has ratified the OPCAT, the Government will begin a lobbying campaign urging other countries to sign, ratify and implement both the Convention and the Optional Protocol.
9. Under section 134 of the Criminal Justice Act 1988, torture is already an offence in the United Kingdom. The Human Rights Act 1998, which came into force on 2 October 2000, gives further effect in United Kingdom law to the substantive rights and freedoms contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms. These include article 3 of the Convention, which provides that no one shall be subjected to torture or inhuman or degrading treatment or punishment. The Human Rights Act places a statutory obligation upon all public authorities to act compatibly with the Convention rights and strengthens a victim’s or potential victim’s ability to rely upon the Convention rights in any proceedings.
10. The United Kingdom is also party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which entered into force in the United Kingdom on 1 February 1989. Since the last report delegations from the Committee established under the Convention have made four visits to the United Kingdom: to Northern Ireland in 1999 (the Committee’s report and the United Kingdom’s response were published on 3 May 2001); to England and Wales in February 2001 (the Committee’s report and the United Kingdom’s response were published on 18 April 2002); an ad hoc visit to the United Kingdom in February 2002, to examine the treatment of persons detained under the Anti-terrorism, Crime and Security Act (ATCS) 2001 (the Committee’s report and the United Kingdom’s response were published on 12 February 2003); and to England, Scotland and the Isle of Man in May 2003.
United Kingdom response to the observations of the Committee following the last oral examination
Regarding the Committee’s concerns that Sections 1 and 14 of the State Immunity Act were in conflict with articles 4, 5, 6 and 7 of the Convention, the Committee will no doubt be aware of the House of Lords decision in the Pinochet case, in which it was found that the immunities of a former Head of State did not extend to criminal proceedings concerning torture (see paragraphs 26, 64–66, …).
Information relating to articles 2–16 of the Convention
Article 2 (Measures to prevent torture) and 4 (Offences of torture)
Protection against torture
36. Previous reports have summarized the various provisions of United Kingdom law, which hold conduct constituting torture to be a serious criminal offence. As mentioned in paragraph  above, the Human Rights Act 1998, which came into force on 2 October 2000, gives further effect in the United Kingdom to the European Convention on Human Rights, including article 3, which prohibits torture and inhuman or degrading treatment or punishment. Under the Human Rights Act it is unlawful for any public authority to act in a way incompatible with the Convention rights, if it does, the Act provides a new cause of legal action and remedy. Therefore there is now further protection in United Kingdom law against any act of torture.
43. Her Majesty’s Government remains committed to preventing British companies from manufacturing, selling or procuring equipment designed primarily for torture or other cruel, inhuman or degrading treatment or punishment.
Article 7 (Prosecution of individuals suspected of torture and not extradited)
64. The Committee recommended the case of Senator Pinochet should be referred to the Office of the Public Prosecutor, with a view to examining the feasibility of initiating criminal proceedings against him in England, in the event that a decision was made not to extradite him.
65. Having decided, in November 1999, not to order Senator Pinochet’s extradition to Spain, the Home Secretary referred the case to the Director of Public Prosecutions for consideration of a domestic prosecution in accordance with article 7 of the Convention. Papers were supplied in advance to the Solicitor General and the Director of Public Prosecutions for that purpose.
66. On 2 March 2000, the Solicitor General explained to the House of Commons why the Crown Prosecution Service (CPS) could not prosecute Senator Pinochet: firstly, the material in possession of the CPS would not be admissible in English courts, because the evidence was submitted in a form which did not satisfy the law of evidence used in the legal system of the United Kingdom; secondly, a police investigation would be necessary to gather admissible evidence; and finally, whatever the state of the evidence, no court in England and Wales would be likely to allow Senator Pinochet to be tried by reason of his health. The Solicitor General agreed with these reasons. Subsequently, Senator Pinochet was allowed to leave the United Kingdom …
Article 8 (Extraditable offences)
67. Since the third report, the only extradition request received by the United Kingdom for an individual suspected of torture was the request for the extradition of Senator Pinochet. In a landmark ruling, the House of Lords established that torture was an international crime over which the parties to the United Nations Convention against Torture had universal jurisdiction, and that a former Head of State did not have immunity for such crimes. On 2 March 2000, the Home Secretary announced that he had discharged Senator Pinochet from extradition proceedings on the grounds that he was unfit to stand trial and that no significant improvement in his condition could be expected …
Article 9 (Mutual legal assistance)
68. As described in previous reports, the United Kingdom gives full legal assistance under the Criminal Justice (International Co-operation) Act 1990 to foreign courts or prosecuting authorities. The United Kingdom Central Authority for mutual legal assistance has not, to its knowledge, received any requests for assistance from overseas authorities in connection with offences involving torture.
In 2004, in a statement before the UN Security Council, the representative of the United Kingdom stated:
British personnel in Iraq operate in accordance with the Geneva Convention and international law – obligations we take extremely seriously. Abuse of prisoners is completely unacceptable and the United Kingdom Government will not hesitate to act where British troops fail to uphold our obligations under international humanitarian law or the high standards expected by the British and international public.
The United Kingdom Government has apologized unreservedly to any Iraqis who have been mistreated by United Kingdom troops. We will not tolerate such mistreatment and will continue to investigate any allegations swiftly and thoroughly.
In 2004, in a written answer to a question concerning interrogation techniques, the UK Minister of State for Defence stated:
It is made clear to all armed forces personnel undergoing training in interrogation that the five techniques, hooding, wall standing, sleep deprivation, food deprivation, and white noise, are in all circumstances unacceptable as methods of interrogation.
In 2004, in a written answer to a question concerning, inter alia, the occupation of Iraq and compliance with international humanitarian law, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
All UK military personnel deploying to Iraq receive an aide-mémoire card on the law of armed conflict which clearly states that prisoners, detainees and civilians must be treated with dignity and respect, and must not in any way be subject to abuse, torture or inhuman or degrading treatment.
In 2004, in a written answer to a question concerning “the document issued to service personnel announcing the ban on the use of hoods for Iraqi prisoners”, the UK Secretary of State for Defence stated:
An amended Standard Operating Instruction on the Policy for Apprehending, Handling and Processing Detainees and Internees was issued on 30 September 2003. The following section of the document contains the relevant information.
a. Apprehended individuals are to be treated at all times fairly, humanely and with respect for his or her personal dignity;
b. Apprehended individuals are to be protected from danger and the elements;
c. Apprehended individuals are not to be kept in direct sunlight for long periods;
d. Medical care is to be provided if required;
e. Food and water are to be provided as necessary, having regard to any national, ethnic or religious dietary requirements;
f. Physical and mental torture, corporal punishment, humiliating or degrading treatment, or the threat of such, is prohibited;
g. The use of hooding and stress positions are prohibited;
j. It is a command responsibility to ensure that all apprehended individuals are treated in accordance with these principles.
In 2004, in a written answer to a question concerning, inter alia, measures to ensure respect for the prohibition on torture and other forms of ill-treatment in Iraq, the UK Minister of State for Defence stated:
Members of the United Kingdom armed forces are liable under both UK and international law for their conduct while on operations in Iraq. As such, military personnel are fully informed of their responsibilities and obligations under international human rights and humanitarian law, not only through training received prior to deployment, but also through specific Standard Operating Procedures. All UK military personnel deploying to Iraq receive an Aide Memoire card on the Law of Armed Conflict, which clearly states that prisoners, detainees and civilians must be treated with dignity and respect, and must not in any way be subject to abuse, torture or inhuman or degrading treatment.
Any credible allegations of abuse by UK forces are investigated.
In 2004, in a written answer to a question concerning, inter alia, instructions to armed forces involved in the handling of prisoners in Iraq, the UK Minister of State for Defence stated:
All UK armed forces personnel are instructed that Iraqi prisoners should be treated in accordance with the Geneva Conventions, which include the prohibition of torture. Each major unit also has a number of personnel trained to a greater degree in prisoner handling. All UK interrogators must successfully complete a stringent course prior to undertaking any operational interrogations. During the course they are specifically instructed that individuals being questioned must, again, be treated at all times in accordance with the Geneva Conventions.
In 2004, in a written answer to a question concerning the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the UK Minister of State, Home Office, stated:
The Government unreservedly condemn the use of torture and have made it an important part of their foreign policy to pursue its eradication worldwide. The Government are not aware of any proceedings in a UK court in which any statement which is established to have been made as a result of torture has been invoked as evidence, except against a person accused of torture.
In 2004, in a written answer to a question concerning, inter alia, the treatment of prisoners transferred to US custody, the UK Minister of State for Defence stated:
The UK Government takes its responsibilities to safeguard individuals taken into custody by UK forces very seriously. In March 2003, the UK and US Governments agreed a Memorandum of Understanding which contains mutual assurances on the treatment of all transferred persons in Iraq and confirms that such persons are entitled to the full protection of the Geneva Conventions.
During the period from April 2003 to December 2003, when large numbers of UK-held persons were in US custody at Camp Bucca, their treatment was monitored continuously by a UK Prisoner Monitoring Team and Prisoner of War Registration Unit. The UK team were not aware of any incidents of deliberate detainee mistreatment at the Camp.
In 2005, in a reply to a question concerning, inter alia, UK involvement in the practice of “extraordinary rendition”, the UK Foreign Secretary stated:
[T]here are no circumstances in which British officials use torture, nor any question of the British Government seeking to justify the use of torture … the British Government, including the terrorist and security agencies, has never used torture for any purpose including for information, nor would we instigate or connive with others in doing so.
In 2005, in a written answer to a question concerning measures “to discourage the use of torture as an interrogation method in overseas countries”, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, stated:
The UK unreservedly condemns the use of torture as a matter of fundamental principle. We have worked hard with our international partners to eradicate this abhorrent practice. The UK abides by its commitments under international law including the UN Convention against Torture and the European Convention on Human Rights, and expects all countries to comply with their international legal obligations. We are active in pressing other countries to live up to their human rights obligations and to deliver on human rights commitments they have made.
In 2005, in a reply to a question concerning the treatment of prisoners transferred to Iraqi authorities, the UK Parliamentary Under-Secretary of State, Ministry for Defence, stated:
We take all practicable steps to ensure that any prisoners handed over to the Iraqi criminal justice system are not mistreated. We have agreed a memorandum of understanding (MoU) with the Iraqis governing prisoner transfer. Under the terms of the MoU, we seek written guarantees for each prisoner transferred to the Iraqis ensuring that they will not be mistreated. And once transferred, court liaison teams from the Royal Military Police monitor their cases to ensure no abuse is occurring.
In 2005, in a written answer to a question concerning, inter alia, the use of intelligence obtained by torture, the UK Foreign Secretary stated:
The Government, including the intelligence and security agencies, never uses torture for any purposes, including to obtain information. Nor would we instigate others to do so. Where we are helping other countries to develop their own counter-terrorism capability, we ensure that our training or other assistance promotes human rights compliance. Our rejection of the use of torture is well known by our liaison partners.
In 2005, in a reply to a question in the House of Lords concerning “extraordinary rendition flights”, a UK Government representative stated:
Her Majesty’s Government abide by their obligations under international law and would not facilitate the transfer of an individual from or through the UK to another state where there were grounds to believe that the person would face a real risk of torture. The Government believe their application and interpretation of the Chicago convention is entirely compatible with their other international obligations.
In 2006, in a reply to a question in the House of Lords concerning “[w]hether [the government] are under a positive obligation in international law to seek to prevent the use of United Kingdom air space or airports for the purpose of facilitating torture or other ill treatment of individuals carried on civil or military aircraft”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
Article 3 of the European Convention on Human Rights, when read with Article 1, imposes a positive obligation on states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or to inhuman or degrading treatment or punishment. In so far as individuals on board civil or military aircraft in UK airspace or airports are within the UK’s jurisdiction for the purpose of the convention, this positive obligation applies. The measures that are required to be taken in any given situation will depend upon the circumstances of the case.
In 2006, during a debate in the House of Commons, the UK Minister of State for Trade, Foreign and Commonwealth Office, stated:
The UK unreservedly condemns the use of torture, and is working hard with its international partners to eradicate that abhorrent practice by launching a global campaign for universal ratification of the UN convention against torture, as well as lobbying in support of its optional protocol; publishing and distributing a number of human rights handbooks specifically aimed at combating torture; and supporting anti-torture work by the United Nations, the Organisation for Security and Co-operation in Europe and the Council of Europe. The UK also used its EU presidency to take forward an EU initiative to combat torture around the world. That included démarches in 39 countries.
In 2006, in response to a question concerning, inter alia, “the Government’s intention … not to rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture”, the UK Government stated:
Evidence obtained as a result of any acts of torture by British officials, or with which British authorities were complicit, would not be admissible in criminal or civil proceedings in the UK. It does not matter whether the evidence was obtained in the UK or abroad.
In 2006, during a debate in the House of Commons, the UK Minister of State for Trade, Foreign and Commonwealth Office, stated:
I want to make it clear that, we take allegations of abuse and mistreatment made by UK nationals previously held at Guantanamo very seriously. In respect of the British detainees, we raised concerns about issues including isolation, lack of access to daylight, lack of exercise and delays with mail. We pursued those concerns with the US authorities and secured a number of improvements in the physical conditions of the detention of the detainees, as well as improvements to the exercise regime and mail service.
In 2006, in a written answer to a question in the House of Commons concerning “whether the Government have entered into a Memorandum of Understanding with the Government of Algeria on the use of torture”, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, stated:
The Government unreservedly condemn the use of torture as a matter of fundamental principle and works hard with its international partners to eradicate this abhorrent practice. The UK abides by its commitments under international law, including the UN convention against torture and the European convention on human rights, and it expects all other countries to comply with their international obligations. We are active in pressing them to deliver on their human rights commitments.
In 2006, in a written answer to a question in the House of Commons, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, stated:
The Government, including the intelligence and security agencies, never uses torture for any purpose, including to obtain information. Nor does the Government or its Security and Intelligence Services ever instigate, condone or otherwise support others in the use of torture for any purpose.
In 2006, in response to a report of the Joint Committee on Human Rights on the Convention against Torture, the UK Lord Chancellor stated:
Over the past nine months, there has been much interest in the subjects of “rendition” and “extraordinary rendition”. The term “rendition” is not defined in law, but is used here to describe the transfer of a person from one jurisdiction to another outside the normal processes of extradition and deportation. The term “extraordinary rendition”, which also has no legal definition, is used here to describe the unlawful transfer of individuals to places where there are substantial grounds to believe that they would face a real risk of torture.
The UK Government has not approved and will not approve a policy of facilitating extraordinary rendition.
In 2006, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
“Extraordinary rendition” flights
51. During the period in which this Response was prepared, there has been widespread public attention to alleged “renditions” of terrorist suspects. The Committee may wish to note the following.
52. The Government has not approved and will not approve a policy of facilitating the transfer of individuals through the United Kingdom (including the UK’s OTs [Overseas Territories]) to places where there are substantial grounds to believe they would face a real risk of torture. The Government would not assist in any case if to do so would put us in breach of British law or international obligations.
53. In view of the level of concern, in late 2005 and early 2006, the Government has carried out an extensive search of files. The search did not uncover any evidence of detainees being rendered through British territory or airspace (or that of the OTs) since 11 September 2001. There was also no evidence of detainees being rendered through the United Kingdom (or OTs) since 1997 where there were substantial grounds to believe there was a real risk of torture. There were four cases in 1998 where the United States requested permission to render one or more detainees through the UK or OTs. In two of these cases, the Government granted the request, and in the other two it refused. In both the cases where the request was granted, the individuals were being transferred to the United States in order to face trial on terrorism charges and were subsequently convicted.
Use of torture …
54. An appeal by the British Government to the House of Lords on the use of torture evidence arose as a result of individual appeals by 10 of the individuals who were certified and detained under the ATCS Act. On 8 December 2005, the Law Lords ruled that there is an exclusionary rule precluding the use of evidence obtained by torture. The effect of this ruling is simply to replace the British Government’s stated policy, namely, not to rely on evidence which is believed to have been obtained by torture by an “exclusionary” rule of law.
In 2007, in a written answer to a question in the House of Commons concerning any undertakings possibly sought or received from the United States that the US Administration had not “rendered” any detainees through UK territory, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, wrote:
We are clear that the US would not render a detainee through UK territory or airspace without our permission. … We have also carried out extensive searches of official records and have found no evidence of detainees being rendered through the UK or overseas territories since 1997 where there were substantial grounds to believe there was a real risk of torture.
In 2007, in a debate in the House of Commons, the UK Minister of State for the Middle East, Foreign and Commonwealth Office, said:
I reiterate that the Government have not approved and will not approve a policy of facilitating the transfer of individuals through the United Kingdom to places where there are substantial grounds to believe that they would face a real risk of torture.
… [W]e carried out extensive searches of official records and found no evidence that detainees were rendered through the UK or overseas territories since 1997 if there were substantial grounds to believe that there was a real risk of torture.
… However, the Government’s policy is clear: the facts of each individual case will determine whether any particular rendition is lawful … If we are requested to assist another state and our assistance would be lawful, we will decide whether to assist, taking into account all the circumstances. We would not assist in any case if it would put us in breach of UK law or our international obligations.
… I believe that torture is wrong in every respect, and I will fight the corner for not using it or any technique that puts an individual in a position in which, for the sake of getting intelligence or information out of them, their human rights are degraded and they are treated in an abhorrent way.
[When requested to make a statement that the British Government utterly refuse, refute and condemn anything to do with what is commonly known as extraordinary rendition involving torture:] Absolutely. I give that undertaking totally. We are completely opposed to such activities. They are a violation of every international treaty that we have signed up to and of British law, and I hope that that is clear.
… I would like to make this important point. Since before 11 September 2001, we have worked closely with the US to achieve our shared goal of fighting terrorism. As part of that close co-operation, we have made it clear to the US authorities that we expect them to seek permission to render detainees via UK territory and airspace, and that we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations. We have explained our understanding of our obligations under the UN convention against torture and the European convention on human rights. Indeed, it was this country that moved the UN General Assembly resolution – we co-sponsored it last year. It sets out our opposition to any form of deprivation of liberty that amounts to placing a detained person outside the protection of the law.
In 2007, in its response to the Intelligence and Security Committee’s Report on Rendition, the UK Government stated:
The Government welcomes these important conclusions, which underline the fact that, as the Committee reflects in paragraph 46 of its Report, the UK’s intelligence and security Agencies will not assist or involve themselves in a rendition operation where there are grounds to believe that the person being rendered would face a real risk of torture or CIDT [cruel, inhuman or degrading treatment].
… The UK opposes any form of deprivation of liberty that amounts to placing a detained person outside the protection of the law.
As we have pointed out [earlier in the same document], when we are requested to assist another State in a rendition operation, and our assistance would be lawful, we would decide whether or not to assist taking into account all the circumstances. We would not assist in any case if to do so would put us in breach of UK law or our international obligations, including under the UN Convention Against Torture.
The Government welcomes these clear conclusions, which support the Government’s repeated assurance that there is no evidence to suggest that renditions have been conducted through the UK without our permission, or in contravention of our obligations under domestic and international law. The conclusions support our clearly stated position that we have not approved, and will not approve, a policy of facilitating the transfer of individuals through the UK to places where there are substantial grounds to believe they would face a real risk of torture.
In 2007, in a written answer to a question in the House of Commons concerning “the assurances of the US authorities over the non-use of Diego Garcia for the rendition of detainees suspected of involvement in terrorism”, the UK Parliamentary Under-Secretary of State for Foreign Affairs, Foreign and Commonwealth Office, wrote:
The Government co-operated fully with the Council of Europe’s inquiry last year, together with an inquiry on similar issues by the European Parliament. At that time the Government explained that we had carried out extensive searches of official records and found no evidence of detainees being rendered through the UK, or Overseas Territories, since 1997, where there were substantial grounds to believe there was a real risk of torture.
In 2007, in a written answer to a question in the House of Commons concerning sharing intelligence with States that permit torture, the UK Foreign Secretary wrote:
Torture is one of the most abhorrent violations of human rights and human dignity, and its use is absolutely prohibited under international law. We unreservedly condemn the use of torture and have made it an important part of our foreign policy to pursue its eradication world-wide. Where we are helping other countries to develop their own counter-terrorism capability, we ensure our training or other assistance promotes human rights compliance.
The Government, including the Intelligence and Security Agencies, never use torture for any purpose, nor would we instigate others to do so. Our rejection of the use of torture is well known by our partners and our intelligence agencies routinely seek assurances from foreign liaison services on humane treatment of detainees.
In 2008, the UK Army published the Aitken Report which investigated cases where members of the British Army were alleged or proven to have mistreated or killed Iraqi civilians outside the context of immediate combat operations in 2003 or early 2004. The Aitken Report investigated six cases, one of which concerned the deaths of Baha Mousa and eight other Iraqis who “suffered varying degrees of abuse whilst in British custody”.
The report stated: “The Army condemns the sort of behaviour that has been exemplified in the cases of abuse with which this report is concerned.”
The report also stated:
3. … [S]ix cases investigated by the Service Police involved allegations of deliberate abuse: abuse which could not be mitigated by decisions made by British soldiers “in the heat of the moment”, or in the face of an immediate threat to their own safety; but rather which appeared to have been committed in a deliberate and callous manner. They involved either the death or injury of Iraqi civilians who had been arrested or detained by British troops. Four occurred in May 2003; one in September 2003; and the last in April 2004. …
16. Although all the cases with which this report is concerned are characterised to varying degrees by failings in the way in which our people dealt with Iraqi civilians whom they had arrested, the case of Baha Mousa particularly raises questions about the manner in which civilians were abused while held formally in detention. … By the time that all the lessons have been learned from the Baha Mousa case, we should be clear about how soldiers on the ground in Iraq in 2003 apparently came to think that certain practices which had been previously proscribed were lawful. This report cannot answer that question; but it can shed some light on the circumstances at the time, and outline the measures that have been subsequently taken to prevent similar incidents.
17. Following the decision to introduce Internment in Northern Ireland in August 1971, a number of allegations of abuse were made against security forces which were the subject of the decision of the European Court of Human Rights (EctHR) in 1978 in the case of Ireland v UK. The allegations centred around the use of certain techniques as an aid to interrogation, and which came to be known as the “Five Techniques”: wall standing; hooding; subjection to noise; sleep deprivation; and deprivation of food and drink. In March 1972, Lord Parker (then Lord Chief Justice of England) published a report into the legal and moral aspects of the use of the Five Techniques. He noted that “the use of some if not all of the techniques would … constitute criminal assaults and might give rise to criminal proceedings”, but concluded that the application of the techniques, subject to recommended safeguards against excessive use, need not be ruled out on moral grounds. As a clear statement of Government intent, in 1972 the then Prime Minister, Mr Heath, said in the House of Commons that “ … the Government … have decided that the techniques … will not be used in future as an aid to interrogation … The statement that I have made covers all future circumstances.” The ECtHR concluded that, while the combined use of the Five Techniques did not amount to torture, it did amount to a practice of inhuman and degrading treatment, and was therefore in breach of Article 3 of the European Convention on Human Rights. It further found that, although the Five Techniques were never officially authorised in writing, they were nevertheless taught orally at the Intelligence Centre (the forerunner of the Defence Intelligence and Security Centre (DISC)). The position taken by the Prime Minister in 1972 was re-stated in 1977 by the Attorney-General during the court proceedings when he said: “The Government … now give this unqualified undertaking, that the five techniques will not in any circumstances be reintroduced as an aid to interrogation.”
18. The immediate response to the direction from the Prime Minister was publication by the Joint Intelligence Committee [JIC] (A) in June 1972 of a “Directive on Interrogation by the Armed Forces in Internal Security Operations”, specifically proscribing the Five Techniques as an aid to interrogation. It required “… JIC(A) Departments and Agencies, the Home Department and the Northern Ireland Office to ensure, with immediate effect, that any interrogations for intelligence purposes are conducted in conformity with the Directive.” Its stated aim was to “… establish rules for the conduct of interrogation by Service personnel in Internal Security operations …” In August 1972, the Vice-Chief of the Defence Staff sent a copy of the Directive personally to the Commandant of the Intelligence Centre, requiring it to be reflected in all training at the Centre. He also noted: “Special instructions based on [the Directive] will be issued by the Ministry of Defence for any interrogation operation which Ministers may authorise involving the armed forces.”
19. It has not been possible to determine how JIC(A)’s direction was reflected in doctrine or training in the 1970s, nor to find any further “special instructions” after 1972. It is likely that, since the direction was specifically limited to the use of the Five Techniques in internal security operations, its provenance was probably limited to Northern Ireland operations only; and it is also likely that, since the direction was limited to the use of the Five Techniques as an aid to interrogation, it did not extend outside the intelligence community. We know that, by 2003, the doctrine in use at DISC only required prisoners to be treated in line with international law, and did not mention specifically the Five Techniques. Determining exactly how and when specific direction in 1972 came to be lost in 2003 would have to be a matter for separate investigation.
Context in Iraq
20. … In the case of Iraq in 2003, the bulk of the training provided for the first three waves of troops deployed into theatre (that is, those who fought the war and began the process of nation rebuilding, and those who replaced them throughout 2003) was targeted at war-fighting skills. In the particular areas of arrest and detention, extant Army policy was not used to provide sufficient guidance to prepare our people for all the challenges they actually faced. The training packages, plus the doctrine that underpinned them, were (correctly) founded on the Law of Armed Conflict, but based largely on a conventional war scenario. They described in detail the manner in which prisoners of war were to be treated, but made scant mention of the treatment of civilian detainees – the group which, as it happened, our people were much more concerned after the formal cessation of hostilities in April 2003. Regimental Police (usually charged with running unit detention centres in Iraq) were only specifically trained in the running of unit guard rooms in barracks, and had little preparation for handling civilian prisoners. This omission in training was despite the recent experiences in Kosovo in June/July 1999 when civilians were initially detained in unit-run detention facilities, before expert help from the Military Provost Staff was later introduced. Furthermore, it was not until 2004, after we became aware of the allegations of abuse, that all soldiers deploying to Iraq were given specific instruction on the correct handling of detainees (as part of their pre-deployment training), and that formal direction was given to troops in Iraq that hooding should cease. Notwithstanding that formal proscription, specific direction had also been given in theatre that hoods were not to be used in detention centres as early as March 2003.
23. Against this background, we need to be clear about what was and was not an illegal technique. Some aspects of the Five Techniques may not, in themselves, be illegal: it is the circumstances that define their legality. For example, there will be occasions where it will be perfectly reasonable to deprive temporarily a captured person of his sight or hearing (to protect the security of our own troops, or to prevent collusion with other captured personnel, for example); and if the only means of doing that was by means of a hood, then that would not in itself constitute an illegal act. The requirement to search a captured person may quite legitimately involve him being made to stand against a wall with his arms outstretched – technically a “stress position” if maintained to the point of discomfort. At the point of capture, it may be necessary for soldiers to order their prisoners to adopt uncomfortable positions – if the soldiers are outnumbered, for example, or if those being arrested still pose a threat to those detaining them. These may all be lawful actions; but it will be noted that in all these examples there is no suggestion of using the Techniques as an aid to interrogation. On the other hand, the decision in the Ireland case makes it clear that it is unlawful to require a captured person to maintain a ‘stress position’ once he is secure in a detention unit, or to hood him, or to subject him to noise, or unnecessarily to prevent him from sleeping, or to deprive him of food and drink, as an aid to I&TQ [Interrogation and Tactical Questioning]. The issue is therefore to an extent one of context; and the Army’s challenge must be to ensure that as clear a delineation exists as possible to guide all soldiers in what is and is not acceptable practice.
24. Current policy on I&TQ specifically proscribes the Five Techniques; but this is not spelled out in Joint Defence Publication 1-10 “Prisoners of War, Internees and Detainees”. The list of Prohibited Acts (at Section II) in the latter includes “Outrages upon Personal Dignity”, with a footnote that reads: “The practice of ‘hooding’ any captured or detained person is prohibited.” (No definition of the term “hooding” is given in the text, nor any explanation of why the word appears in inverted commas). No specific mention is made of the other four Techniques. … [I]t seems logical that JDP 1-10 should now be amended … specifically to proscribe the Five Techniques as an aid to interrogation. …
24. … Since early 2004, every soldier deploying either to Iraq or Afghanistan has been instructed, as part of pre-deployment training, on the requirements of those theatre’s instructions for detainee handling. That training stipulates, inter alia, that no one is to be hooded for any purpose (if vision needs to be restricted, then blacked-out goggles are to be used); and that, if handcuffs are required, they are to be placed to the front of the body and not behind. It clearly stipulates the conditions under which detainees are to be held, and proscribes any form of ill-treatment.
[footnotes in original omitted]
In 2008, the UK Secretary of State for Foreign and Commonwealth Affairs responded to the 2007 Annual Report on Human Rights by the Foreign Affairs Committee of the House of Commons. Regarding alleged use of water-boarding by the US, the Secretary of State noted:
24. … [T]he UK unreservedly condemns the use of torture as a matter of fundamental principle. The Government ensures that relevant UK CT [counter-terrorism] co-operation with the US, as with any other partner, would be lawful by reference to our domestic law and applicable international law. We do not simply rely on general assurances a State might give on the use of torture. For example, the UK carefully evaluates any intelligence received from foreign sources, including the US, where it is clear it has been obtained from individuals in detention.
25. The US are fully aware of our views on waterboarding and have actively engaged in a dialogue on all aspects of counter-terrorism and human rights issues, including the handling of detainees. It should be noted that it was the US Government itself that made public its use of waterboarding and the fact that the technique was used in a small number of specific cases in the past. Continued close co-operation with the US is absolutely critical to our ability to counter the threat to the UK posed by global terrorism. We consider that our ongoing dialogue with the US on counterterrorism and human rights issues to be the appropriate course.
The Secretary of State also noted
The Government absolutely denies the serious allegation that it has “outsourced” torture as a way of extracting information. We unreservedly condemn the use of torture and our clear policy is not to participate in, solicit, encourage, or condone the use of torture or inhuman or degrading treatment for any purpose.
The UK Government Strategy on the Protection of Civilians in Armed Conflict (2010) states: “IHL requires parties to a conflict to respect and protect civilians. … [C]ivilians must not be … subjected to acts of violence such as … torture and other forms of ill-treatment”.
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated regarding common Article 3 of the 1949 Geneva Conventions: “On its face this protection is restricted to armed conflicts not of an international character. However, it is understood to apply in all forms of armed conflict as part of customary international law to set out the irreducible minimum standard.”
The Ministry of Defence further stated:
The fourth paragraph of Art. 27 [of the 1949 Geneva Convention IV] is the source of authority for UK Forces taking “such measures of control and security in regard to protected persons as may be necessary as a result of the war”. It is an example of the express application of the principle of military necessity. Measures of control would, it is submitted, include depriving detainees of sight so long as it was done in a manner which met the general necessity test, was proportionate and which did not breach any of the basic protections set out in Art. 27 and elsewhere in GC4 [the 1949 Geneva Convention IV]. Depriving detainees of sight in such circumstances is not prima facie inhumane but plainly, the way in which Baha Mousa and his fellow detainees were hooded fell outside the scope of Art. 27. Depriving the detainees of sight within the TDF [Temporary Detention Facility] was not necessary, and it was conducted in circumstances which were inhumane and did not respect their honour.
The Ministry of Defence further stated:
12. The treaties setting out rules of IHL are supplemented by rules of customary international law (CIL), i.e. rules which are recognized as binding by States, even though they do not appear in treaty texts. … [I]n relation to the rules described below the Government accepts that they reflect CIL. It is suggested that the rules which are of most relevance to this inquiry are:
12.5. … Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular humiliating and degrading treatment, are prohibited.
[emphasis in original]
The Ministry of Defence also stated:
[T]he principle of military necessity is capable of justifying depriving prisoners of sight where there is a military necessity to do so, where the deprivation of sight also conforms to the principle of proportionality and is done in circumstances which do not violate any of the laws of war.
The Ministry of Defence further stated:
The Correct Approach to the Legality of Sight Deprivation by Hooding in International Armed Conflict in relation to Prisoners of War and to Protected Persons in Occupied Territory
83. In the light of the submissions above in relation to the applicable legal context, it is submitted that the correct legal analysis of hooding as a means of sight deprivation in international armed conflict in relation either to PWs [prisoners of war] or to protected persons in occupied territory first of all requires consideration of what is permissible in IHL and to the extent necessary, other overlapping legal obligations.
84. Hooding as an aid to interrogation during international armed conflict is illegal. It primarily falls foul of Art. 17 GC3 [1949 Geneva Convention III] in the case of PWs [prisoners of war] and Art.31 GC4 [1949 Geneva Convention IV] in the case of civilians. It is also likely to be an offence in English criminal law and a breach of IHRL [international human rights law].
85. Whether hooding for security purposes is unlawful in international armed conflict is fact sensitive. The applicable legal framework will be IHL which, as discussed above provides the relevant lex specialis. Therefore treatment which is in accordance with IHL will not be in breach of either IHRL or domestic criminal law. Further, as mentioned above, IHRL does not in fact set any lower test for inhuman or degrading treatment than that set by IHL.
86. The MOD [Ministry of Defence] submits that hooding for security purposes will be lawful if, in all the circumstances, all of the following conditions are met:
86.1 The need to hood falls within the principle of military necessity. To meet this principle there must be a genuine security need to hood and the hooding must be confined to the period during which the need subsists.
86.2 The decision to hood conforms with the IHL principle of proportionality. There would have to be a compelling military objective in the particular circumstances which, when weighed against the consequences for the individual concerned, would not render the use of a hood excessive in relation to the military objective.
86.3 There is no violation of the prohibition on cruelty, degrading treatment and outrages against personal dignity, in particular humiliating or degrading treatment, Art. 13 GC3 (PWs), Art. 5 GC4 (saboteurs et al), Art. 27 GC4 (civilians), … or Common Article 3 [of the 1949 Geneva Conventions]. In this regard it is appropriate to consider cases determined under Art. 3 ECHR [European Convention on Human Rights] in relation to the obligation of humanity because: “It is generally understood that the detailed rules found in international humanitarian law and human rights law give expression to the meaning of humane treatment”. In this connection [the judgments of the European Court of Human Rights in] Ocalan and Hurtado … demonstrate that hooding per se is not axiomatically inhuman and that the issue is fact dependent.
86.4 The circumstances are not such as to amount to an insult. It would clearly be unlawful for hooding to be used as a means of insulting the person, in the sense meant in Art. 13 GC3 (PWs) or Art .27 GC4 (civilians) or as a means of dishonouring the person in the sense meant in Art 144 GC3 (PWs) or Art. 27 GC4/Hague Regulation 46 (civilians), or intimidating him/her contrary to Art 27 GC3 (PWs).
86.5 It does not cause physical suffering: see Art. 32 GC4 (civilians) or seriously endanger health: see Art. 13 GC3 (PWs ).
86.6 No other rule of IHL is broken.
87. As was stated at the outset of these submissions about the law, the MOD addresses this issue because questions were put to many witnesses about the legality of hooding. These submissions should not be understood as an indication of any desire on the part of the MOD to revisit its policy and reintroduce hooding as a means of sight deprivation. The MOD has banned all hooding of captured persons as a matter of policy.
Stress Positions and Control Positions
88. There is no definitive legal statement or definition of what constitutes a stress position. For the purpose of these submissions, the MOD takes as a working definition of a stress position a physical posture which a captured person is deliberately required to maintain to the extent that it becomes painful, extremely uncomfortable or exhausting to maintain. The positions in which Baha Mousa and his fellow detainees were held clearly fell within this definition. There can be no doubt that stress positions, thus defined, cannot legally be imposed upon captured persons.
89. Stress positions are to be distinguished from what has been described as control positions, namely positions which are not extremely uncomfortable and if uncomfortable, are imposed only for no longer than necessary and for legitimate reasons (e.g. searching PWs safely). It is submitted that in international armed conflict, where IHL applies, requiring captured persons to adopt control positions will be lawful where it is in accordance with the principles of military necessity and proportionality and the circumstances as a whole breach no other requirement of IHL.
[footnotes in original omitted; emphasis in original]
The Ministry of Defence further stated:
Before launching into a detailed consideration of reaction to the five techniques as used in Northern Ireland [wall-standing, hooding, subjection to noise, sleep deprivation and deprivation of food and drink], it might be helpful for the MOD to set out its views on the end-point which was reached in respect of those techniques. The important question is whether, by the end of the 1970s, the five techniques should have been categorically banned for the purposes of interrogation. To this question, the MOD answered an unequivocal “yes”. Those techniques should never again have been used as an aid to interrogation.