United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
37. Following discussion on the United Kingdom’s third report, the Committee recommended that sections 134 (4) and 5 (b) (iii) of the Criminal Justice Act 1988 needed to be reformed to bring them into line with article 2 of the Convention.
38. In the United Kingdom’s third report (para. 15), Her Majesty’s Government indicated plans to issue a consultation paper on a review of legislation on offences against the person, including the offence of torture as set out in the Criminal Justice Act 1988. In February 1998 the Home Office launched a consultation exercise reviewing legislation on offences against the person. As a result of further consideration following the review it is the Government’s view that sections 134 (4) and 5 (b) (iii) of the Criminal Justice Act 1988 do not conflict with article 2 of the Convention, for the reasons given in paragraphs 39–42 below. Consequently the Government has no plans to reform these sections.
39. It is an offence under the Criminal Justice Act if a public official or person acting in an official capacity “intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties”. Sections 134 (4) and 5 (b) (iii) of the Act allow the defence that the pain was inflicted with “lawful authority, justification or excuse.” But this defence needs to be considered in the light of:
- The definition of torture;
- The Convention defence of pain arising from, inherent in, or incidental to, lawful sanction (art. 1); and
- The Human Rights Act 1998.
40. Definition of Torture. The Criminal Justice Act 1988 has a broader definition of torture than the Convention – it includes all severe pain or suffering inflicted in the performance of duties. Without any defence, this law could criminalize:
- Mental anguish caused by imprisonment;
- Any serious injury inflicted by a police officer in the prevention of a crime, even when the offender was injuring another person or attacking the police officer;
- The arrest of a suspect; and so on.
41. Lawful sanction. There is some overlap between the defence of lawful authority, justification or excuse in the 1988 Act and the exception in article 1 of the Convention, which concerns lawful sanction. Although the defence in the 1988 Act goes wider than the exception in article 1, this is because of the broader definition of torture in the 1988 Act (as explained above). Furthermore, the 1988 Act defence only applies where the public official etc., is acting lawfully. There is nothing in the current case law which authorizes, far less requires, the use of this defence in circumstances that would amount to torture within the terms of the Convention.
42. Human Rights Act
. In any event, in the light of the Human Rights Act 1998, the courts are required to interpret the defence so far as possible in a way that is compatible with article 3 of the ECHR [European Convention on Human Rights] (prohibition on torture). There are no foreseeable circumstances in which a defence under the 1988 Act could be available inconsistently with the Convention.
In 2006, in reply to a question concerning, inter alia, the interrogation of detainees and differences in the definition of torture under UK and US law, the UK Foreign Secretary stated:
On the question of definitions, the United Kingdom understands the term “torture” to have the meaning set out in Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Article 1 CAT defines torture as “any act by which severe pain or suffering whether physical or mental is intentionally inflicted…”. It does not, however, give specific examples of what constitutes torture. The understanding of the definition of torture made by the US on ratifying CAT specifies the meaning of “mental pain or suffering” in more detail than Article 1 CAT. The UK made no reservations or understandings on ratification and has not adopted a formal definition of what constitutes mental pain or suffering for the purposes of Article 1. Section 134 of the Criminal Justice Act 1988 provides that a public official commits torture if he intentionally inflicts severe pain or suffering on another in the performance of his duties, and does not define “severe pain or suffering”.
In 2007, in a written answer to a question in the House of Commons concerning, inter alia, the definition of torture used by the Secretary of State for Defence in the context of the activities of UK armed forces in Iraq, the UK Secretary of State for Defence wrote:
The definition of torture derives from section 134 of the Criminal Justice Act 1988 which makes it an offence for a public official to commit torture. Article 1 of the United Nations Convention Against Torture outlines what is considered torture for the purposes of the convention. We are also guided by, among other sources, judgments of the European Court of Human Rights and those of our own domestic courts.
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, noting:
The UK legislation criminalising torture (implementing the UN Convention Against Torture) defines it as any act which causes severe pain or suffering, whether physical or mental, which is intentionally inflicted on a person. But whilst in some cases it will be clear that a certain technique constitutes torture, in other cases it will not be possible to determine whether the use of a particular technique is torture without taking into consideration all the circumstances of the case.
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 (MOD) 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.
12.6. The definition of torture in the context of IHL has been the subject of discussion in recent authorities and has been held to differ from that applied in IHRL [international human rights law]. However, the MOD is of the view that nothing turns on the niceties of the various definitions. Torture is prohibited in CIL, IHL and IHRL [international human rights law].
[emphasis in original]