Related Rule
United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 100. Fair Trial Guarantees
The UK Military Manual (1958) provides that if civil inhabitants “commit or attempt to commit hostile acts, they are liable to punishment, after a proper trial”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 88.
The manual further provides that “the passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples” is prohibited at any time. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 131(1)(d).
The manual specifies that “wilfully depriving a prisoner of war of the rights to a fair and regular trial prescribed in the Convention” is a grave breach of the 1949 Geneva Convention III. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 282.
In cases of occupation, the manual states: “Sentences may be pronounced only after a regular trial.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 570.
The manual further emphasizes that wilfully depriving a prisoner of war or persons protected under the 1949 Geneva Convention IV of the rights of fair and regular trial required by the 1949 Geneva Conventions III and IV is a grave breach of those instruments. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 625(b)–(c).
The UK LOAC Pamphlet (1981) recalls: “[The 1977 Additional] Protocol I contains fundamental guarantees to … ensure that persons are not punished without properly conducted trials.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 9, p. 35, § 10.
With respect to non-international armed conflicts, the Pamphlet refers to common Article 3 of the 1949 Geneva Conventions and states that persons hors de combat “may not be sentenced without proper trial”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 12, p. 42, § 2(a)(4).
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed. No sentence may be passed and no penalty executed “except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its discussion on punishment of prisoners of war, the manual states:
Where there are to be judicial proceedings, prisoners of war are normally to be tried by military courts. If the law of the detaining power permits the trial by civil court of members of its own armed forces for particular offences, the civil courts may try prisoners of war under the same conditions. However, trial may only take place if the court is independent and impartial and the accused is given due rights of defence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.118.
In its chapter on 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:
(d) the passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.4.
In the same chapter, the manual specifies:
Indispensable judicial guarantees include as a minimum:
a. individual criminal responsibility (so that collective punishments would be unlawful);
b. the right of the accused not to be compelled to testify against himself;
c. the presumption of innocence until proved guilty;
d. notification to the accused of the charges against him;
e. adequate time and opportunity for the accused to prepare his defence;
f. the attendance of both prosecution and defence witnesses and, if necessary, an interpreter;
g. trial in person and public judgment. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
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:
f. wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.24.
The manual further states:
Additional Protocol I extends the definition of grave breaches to include the following:
c. the following, when committed wilfully and in violation of the Conventions or the protocol:
(5) depriving a protected person of the rights of fair and regular trial. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.25.
Lastly, the manual provides:
Prisoners of war charged with war crimes must be tried by the same courts, applying the same procedures, as would be applicable to members of the armed forces of the detaining power. Civilians so charged may be tried either by the ordinary courts of the state concerned or in courts set up by an occupying power. Persons accused of war crimes are entitled to a proper trial and have rights of defence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.30.1.
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 or of [the 1977 Additional Protocol I]”. 
United Kingdom, Geneva Conventions Act, 1957, as amended in 1995, Section 1(1).
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(a)(vi) and (c)(iv) of the 1998 ICC Statute. 
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
In 2003, in a reply to a written question in the House of Commons asking whether the UK Foreign Secretary had “called for the status of the prisoners held at Guantanamo Bay to be decided by a tribunal”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, wrote:
Although the Foreign Secretary has not called for a tribunal to decide the detainees’ status, he has raised the issue of the detainees with Colin Powell several times, most recently on 23 January. Officials are in frequent contact.
We have made clear that whatever their status the detainees are entitled to humane treatment and, if prosecuted, a fair trial. We have been encouraging the US to move forward with the process of determining the future of the British detainees. We shall continue to do so. 
United Kingdom, House of Commons, Written answer by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 2 April 2003, Vol. 402, Written Answers, cols. 741W–742W.
In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
On 3 July, the United States designated six detainees, including two British nationals held at Guantanamo bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised, and will continue to raise them energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about that over the weekend and will speak to him again in the next few days.
So far, neither of the detainees has been charged. However, we have made it clear to the US that we expect the process to fulfil internationally accepted standards of a fair trial. We will follow the process carefully.
The right hon. and learned Gentleman asked under what law the men would be charged. We understand that “designation” means that the persons concerned are subject to the order that governs military commissions and can now be charged and prosecuted. However, that is not automatic and we understand that matters will proceed on a case-by-case basis.
We are still seeking information about the conduct of any trial. Indeed, we continue to express strong views about the way in which we hope that a trial will be conducted. The same applies to the right of appeal.
We understand that the Americans will nominate the defence lawyers in some way. We are seeking further information about that, too. The right hon. and learned Gentleman will forgive me if I do not go into much detail, but many aspects are a cause of concern to us and we intend to pursue them all.
The precise way in which the trials will be conducted is not yet clear, and we are taking a close interest in that issue. Many of the questions that the right hon. Gentleman asks relate to matters that we are pursuing with the United States, and I can endorse his last point about our concern that the trials be conducted within the rule of law.
One concern that we are pursuing with the Americans is that in our view, all the evidence concerning the case against these people must clearly be made available to them, so that they are in a position to rebut it.
We understand that the detainee does have the right to choose his own defence lawyer – if he meets the security requirements laid down by the Americans. However, it is clear that this matter will have to be checked out.
I think that the hon. Gentleman’s question concerns whether the Geneva convention should apply to the detainees, and I have already made it clear that, in our view, it should. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 7 July 2003, Vol. 408, Debates, cols. 751–759.
In 2003, during a debate in the House of Commons, the UK Prime Minister stated:
As the right hon. Gentleman knows, the United States is now talking about the right method by which to try anybody against whom charges would be brought. We will make active representations to the United States – indeed, we are already doing so – to make absolutely sure that any such trial will take place in accordance with proper international law.
It is of course important that the commission that tries these people is conducted according to proper rules. Those rules have not yet been drawn up, and it is precisely for that reason that we are making active representations …
What my hon. Friend says must be right. If charges are brought, they must be proved in accordance with proper rules of evidence. As he rightly says, the charges are serious. It is worth remembering that the allegations revolve around what happened in Afghanistan some time ago, when British and American troops were putting their lives at risk there. However, I entirely agree with my hon. Friend – there must be no question about this at all. Any commission or tribunal that tries these men must be conducted in accordance with proper canons of law so that a fair trial takes place and is seen to take place. 
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 9 July 2003, Vol. 408, Debates, cols. 1152–1153.
In 2003, in a reply to a written question in the House of Commons, the UK Solicitor-General wrote:
The Attorney-General has been involved in discussions within Government about the position of UK nationals detained in Guantanamo Bay. He has also raised the matter with those responsible in the United States Administration, to express the Government’s profound concern that if the UK detainees are to be tried they should have a fair trial with all proper safeguards. 
United Kingdom, House of Commons, Written answer by the Solicitor-General, Hansard, 10 July 2003, Vol. 408, Written Answers, col. 959W.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
The assessment of the status of the detainees is a matter for the US, as the detaining power. We have, however, discussed the detainees’ status with the US authorities. They have told us that they do not consider any of the British detainees to be entitled to prisoner of war status. The US authorities have assured us that the detainees are being treated humanely and consistently with the principles of the Geneva Conventions.
Whatever their status, the detainees are entitled to humane treatment and if prosecuted, a fair trial. 
United Kingdom, House of Lords, Written answer by the Minister of State, Foreign and Commonwealth Office, Hansard, 14 July 2003, Vol. 651, Written Answers, cols. WA74–WA75.
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, as I indicated in my original Answer, the issue of the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland is still a matter under discussion, although, as I am sure all noble Lords are aware, it is not possible for the United Kingdom of Great Britain and Northern Ireland Government to give any guarantees even about a trial taking place because of the separation of powers – rightly – between the Government in the form of Government Ministers and the Crown Prosecution Service as the body which would decide whether there is sufficient evidence to go to trial.
However, the noble Lord is quite right to remark that the issues adduced by him of due process and the right to a fair trial still arise. Further, there are widely recognised international norms covering the various elements that constitute a fair trial which my right honourable friend will be addressing with the President of the United States.
My Lords, the question raised by the noble Lord may be premature at this stage; we are still discussing what those procedures should be. If the trials as originally formulated by the United States authorities do go ahead, I think that there would be grave difficulties as regards any observers feeling that those trials would be fair on the basis that we have already discussed. There is no secret about this issue. The United Kingdom of Great Britain and Northern Ireland Government have very strong reservations about what is being proposed at the moment. However, to take the point that were some of those issues to be resolved and the trials to go ahead, I can agree with the noble Lord that the presence of international observers would provide something of a confidence boost to the international community. As my noble friend Lord Judd pointed out, this is a question not just for the United Kingdom of Great Britain and Northern Ireland but also for the international community.
However, we must recognise that some of the issues which may be brought up at those trials may have to be dealt with in camera, for very obvious security reasons.
My Lords, the noble Lord raises two issues. We have made representations to the United States Government in regard to the physical conditions under which the individuals are held – for example, the inadequate facilities for exercise and the inadequate facilities for contact with their families. Representatives of the International Red Cross have visited Guantanamo Bay and are giving their advice to the United States Government.
The more difficult issue pinpointed by my noble friend concerns coercion. It might be argued that a system of plea-bargaining where the alternative to admitting to charges is to face the death penalty is a coercive and difficult line of pre-trial cross-examination.
My Lords, as I understand it, the United States proposes that individuals should be given an advocate chosen from a panel of military lawyers. If an individual does not want to go along with such an arrangement, there may be an opportunity for him to go to an alternative lawyer, but that lawyer will still be drawn from a panel of lawyers who have been vetted by the United States for security purposes. I understand that those are the proposals currently under discussion.
These matters are still under discussion with the United States. As I indicated when we last debated this issue, my right honourable friend the Foreign Secretary is dealing with these matters with his opposite number, Colin Powell. He has raised the serious concerns that we have over the kind of issues raised by the noble Lord and they have agreed that discussions on them will continue. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 17 July 2003, Vol. 651, Debates, cols. 965–968.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
As my right honourable friend the Prime Minister said during Prime Minister’s Questions on 9 July, Official Report, Commons, col. 1152-3, “Any commission or tribunal must be conducted in accordance with the proper canons of law so that a fair trial takes place and is seen to take place”.
The UK has made this view clear to the US. On 18 July the US announced that they would not commence any military commission proceedings against UK nationals, pending discussions between American and British legal experts …
The US announced on 18 July that they would not commence any military commission proceedings against UK nationals detained at Guantanamo Bay, pending discussions between American and British legal experts. We understand from the US authorities that medical facilities, including psychiatric care, at Guantanamo Bay available to the detainees are of a high standard and are the same as those for US military personnel. We firmly believe that a fair judicial process should take account of a person’s fitness to stand trial. This is one of the specific issues we have raised with the US authorities, and continue to discuss with them. 
United Kingdom, House of Lords, Written answer by the Minister of State, Foreign and Commonwealth Office, Hansard, 8 September 2003, Vol. 651, Written Answers, col. WA17.
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
Over the past few months, my noble and learned friend the Attorney-General has vigorously expressed to the United States Administration our strong reservations about the military commission’s procedures. Our objective has been to ensure that if any British nationals are detained at Guantanamo Bay and prosecuted, a fair trial takes place in accordance with generally recognised principles. Discussions continue. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 15 October 2003, Vol. 653, Debates, col. 936.
In 2003, during a debate in the House of Commons, the UK Solicitor-General stated:
The Attorney-General has held meetings with his counterpart, the Attorney-General of the United States, and with officials from the Department of Defence. As the Prime Minister, the Foreign Secretary and others have placed it on record, I take this opportunity to remind the House that the Attorney-General has been holding discussions with the US authorities and has been seeking undertakings that if UK citizens are put on trial in the US they will have a fair trial. We have made it clear that if the Attorney-General is not satisfied that those citizens would receive a fair trial under the United States’ procedures they will be returned to the UK. The hon. Gentleman can be satisfied that either they will have a fair trial or they will be returned to the UK. As negotiations are continuing, I am afraid that I can say nothing further about timing. 
United Kingdom, House of Commons, Statement by the Solicitor-General, Hansard, 30 October 2003, Vol. 412, Debates, col. 434.
In 2003, during a debate in the House of Commons, the UK Prime Minister stated:
On Iraq, the US Secretary of State is correct: Saddam Hussein will be treated with all the rights of a prisoner of war. The trial process should be determined by the Iraqi Government and the Iraqi people. It should be left to them. Of course we must ensure that the process is proper, independent and fair, but I am sure that the Iraqis have the capability to achieve that. We and other countries will work with them to ensure that that is correct. 
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 15 December 2003, Vol. 415, Debates, col. 1323.
In 2004, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated the following on the trial of UK citizens detained by US authorities in Guantanamo Bay:
The Government’s position, reported frequently to Parliament, has been that the detainees should either be tried fairly in accordance with international standards or be returned to the UK. Last July, we expressed publicly our reservations about the US military commissions and the US Government suspended legal proceedings against two of the British detainees who had been designated for trial by the commissions. Those proceedings remain suspended. Subsequently, after a lengthy series of discussions with the US, led for the British side by the Attorney-General, we concluded that the military commissions process would not provide sufficient guarantees of a fair trial according to international standards. Therefore, we requested that the nine British detainees be returned to the UK. 
United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 1 July 2004, Vol. 423, Debates, cols. 528–529.
In 2004, during a debate in the House of Commons, the UK Solicitor-General stated the following on the trial of UK citizens before a US military commission:
We have strongly stood behind the rights of those detainees either to have a fair trial or be brought home. We have made that position clear. That is why the military commissions that were proposed by the US authorities in respect of those particular UK detainees have been suspended. 
United Kingdom, House of Commons, Statement by the Solicitor-General, Hansard, 9 September 2004, Vol. 424, Debates, col. 858.
In 2006, during a debate in the House of Commons, the UK Minister of State for Trade, Foreign and Commonwealth Office, stated:
The British Government’s view is that, whatever the status of the so-called global war on terror, the detainees at Guantanamo are entitled to humane treatment and, if prosecuted, to a fair trial. We have made that clear to the United States authorities … In private diplomatic discussions, at both ministerial and official levels, the UK has made its views known to the US Government and has made representations to them about the circumstances in which, and conditions under which, detainees are held at Guantanamo.
After a lengthy series of discussions with the US, which were led for the Government by the Attorney-General, in 2004 the Government concluded that the military commissions process would not provide sufficient guarantees of a fair trial according to international standards. That eventually led to the release and return of the British detainees at Guantanamo. 
United Kingdom, House of Commons, Written answer by the Minister of State for Trade, Foreign and Commonwealth Office, Hansard, 22 May 2006, Vol. 446, Debates, col. 1307.
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.” 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, § 10.2, p. 10.
The UK Military Manual (1958) states: “In no circumstances whatsoever may [prisoners of war] be tried by a court which does not afford the essential guarantees of independence and impartiality.” It explains that prisoners of war, under certain conditions, may be tried by civil courts and that “such courts must in any case comply with the requirement of independence and impartiality”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 202.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
No sentence may be passed and no penalty executed “except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its discussion on punishment of prisoners of war, the manual states:
Where there are to be judicial proceedings, prisoners of war are normally to be tried by military courts. If the law of the detaining power permits the trial by civil court of members of its own armed forces for particular offences, the civil courts may try prisoners of war under the same conditions. However, trial may only take place if the court is independent and impartial … 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.118.
In its chapter on 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:
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.4.
In 2004, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated regarding the trial of UK citizens before a US military commission:
[T]he view of the Attorney-General was that the military commission, as constituted, would not provide the type of process that we would afford to British nationals. We have been attempting to ensure that the legal process will respect the human rights of the detainees, including the right to a fair and public hearing by a competent, independent and impartial tribunal, established by law. 
United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, Hansard, 24 March 2004, Vol. 419, Debates, col. 307WH.
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.” 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, § 10.2, p. 10.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … anyone charged with an offence is presumed innocent until proved guilty according to law. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … the presumption of innocence until proved guilty.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
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 report stated:
27. Four cases involving Iraqi deaths as a result of deliberate abuse have been investigated, and subsequently referred to the Army Prosecuting Authority (APA) on the basis there was a prima facie case that the victims had been killed unlawfully by British troops. …
29. The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq may appear worrying, but it is explicable. Evidence has to be gathered … ; that evidence has to be presented in court; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt. 
United Kingdom, Army, The Aitken Report: An Investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004, 25 January 2008, §§ 27 and 29.
[footnote in original omitted]
The UK Military Manual (1958) states: “Before any disciplinary award is pronounced [against a prisoner of war] the accused must be given full information regarding the offence with which he is charged”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 208.
With regard to judicial proceedings against prisoners of war, the manual provides: “Particulars of the charges brought against the accused … must be given to the accused in a language which he understands.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 228.
With respect to situations of occupation, the manual states: “The accused must be promptly informed, in writing and in a language which they understand, of the charges brought against them.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 570.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … the procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
The manual also provides that before awarding any disciplinary punishment to a civilian internee, “the accused must be given full details of the offence … and be given an opportunity to explain his conduct and to defend himself”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.9.
In its discussion on judicial proceedings against prisoners of war, the manual states:
Particulars of the charge or charges, as well as any documents which have by law normally to be handed to an accused person serving in the armed forces of the detaining power, must be given to the accused in a language which he understands, and also to his defending counsel, in good time before the opening of the trial. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.133.
In its discussion on disciplinary measures against prisoners of war, the manual states: “Before any disciplinary award is announced, the accused must be given precise information regarding the offences of which he is accused and an opportunity to explain his conduct and defend himself.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.125.
In its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … prompt written notification, in a language that they understand, of the particulars of the charges against them”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … notification to the accused of the charges against him.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
The UK Military Manual (1958) states: “In no circumstances whatsoever may [prisoners of war] be tried by a court … the procedure of which does not afford the accused the rights and means of defence laid down in Art. 105 [of the 1949 Geneva Convention III].” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 202.
The manual further states: “No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 225.
In addition, the manual provides:
In any judicial proceedings against him, the prisoner of war is entitled to … defence by a qualified advocate or counsel of his own choice …
Defending Counsel must be given at least two weeks before the opening of the trial in which to prepare the defence of the accused. He must also be given all necessary facilities; in particular, he must be allowed freely to visit the accused and to interview him in private … The facilities are to remain available until the expiry of the time for appeal or petition against conviction. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 227.
With respect to situations of occupation, the manual states that the accused “have the right to be assisted by a qualified advocate or counsel of their own choice”, that the qualified advocate or counsel of the choosing of the accused “must be able to visit them freely and to enjoy the necessary facilities for preparing the defence” and that the “accused have the right to present evidence necessary to their defence”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 571.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … the procedure shall … afford the accused before and during his trial all necessary rights and means of defence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its discussion on punishment of prisoners of war, the manual states:
In good time before the trial to enable him to exercise them, the accused must be informed of his rights to:
a. be assisted by a fellow prisoner of war;
b. be defended by a qualified advocate or counsel of his own choice;
The defending advocate must have at least two weeks before the opening of the trial for preparation of the defence. Up to the expiry of time for appeal or petition, he must be given all the necessary facilities including the following rights:
a. to visit the accused and interview him privately;
b. to interview defence witnesses, including prisoners of war. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 8.133.–8.133.3.
In its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … assistance by a qualified advocate or counsel of their choice who must be able to visit them freely and have all necessary professional facilities for preparation of the defence”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
In its chapter on internal armed conflict, the manual further states: “Indispensable judicial guarantees include as a minimum … adequate time and opportunity for the accused to prepare his defence.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
On 3 July, the United States designated six detainees, including two British nationals held at Guantanamo bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised, and will continue to raise them energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about that over the weekend and will speak to him again in the next few days.
We understand that the Americans will nominate the defence lawyers in some way. We are seeking further information about that, too. The right hon. and learned Gentleman will forgive me if I do not go into much detail, but many aspects are a cause of concern to us and we intend to pursue them all.
One concern that we are pursuing with the Americans is that in our view, all the evidence concerning the case against these people must clearly be made available to them, so that they are in a position to rebut it.
We understand that the detainee does have the right to choose his own defence lawyer – if he meets the security requirements laid down by the Americans. However, it is clear that this matter will have to be checked out.
I think that the hon. Gentleman’s question concerns whether the Geneva convention should apply to the detainees, and I have already made it clear that, in our view, it should. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 7 July 2003, Vol. 408, Debates, cols. 751–759.
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, as I understand it, the United States proposes that individuals should be given an advocate chosen from a panel of military lawyers. If an individual does not want to go along with such an arrangement, there may be an opportunity for him to go to an alternative lawyer, but that lawyer will still be drawn from a panel of lawyers who have been vetted by the United States for security purposes. I understand that those are the proposals currently under discussion. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 17 July 2003, Vol. 651, Debates, cols. 965–968.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
However, in addition, the Attorney-General, who has represented the Government in discussions with the US Administration about the military commissions, issued a statement on 22 July, following the first round of talks. This included a reference to the question of legal representation. Part of the statement says “… the US has assured us that … Begg and Abbasi will be able to be represented by an appropriately qualified US civilian lawyer of their own choosing, subject to security clearance. A UK lawyer will be able to serve as a consultant on the defence team. Each detainee will be able to decide to what extent he wished the appointed military counsel to participate in the preparation of his case.”
However, in addition, the Attorney-General, who has represented the Government in discussions with the US Administration about the military commissions, issued a statement on 22 July, following the first round of talks. This included a reference to the question of communications between defendants and their lawyers. Part of the statement says “… the US has assured us that … exceptionally, conversations between Begg or Abbasi and his defence counsel would not be monitored or reviewed by US authorities.” 
United Kingdom, House of Lords, Written answer by the Minister of State, Foreign and Commonwealth Office, Hansard, 3 November 2003, Vol. 654, Written Answers, cols. WA67–WA68.
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
Article 11 (Monitoring of procedures to prevent torture or other forms of ill-treatment)
Access to legal advice
101. In all parts of the United Kingdom, anyone subject to questioning by the police or attending the police station voluntarily has the right to consult a legal adviser and, as a general rule, to have a legal adviser present during interview. These rights are set out in the Code of Practice for the detention, treatment and questioning of persons by police officers (Code C) issued under the PACE [Police and Criminal Evidence] Act 1984 in England and Wales, in parallel Codes in Northern Ireland, and under the Criminal Procedure (Scotland) Act 1995. Under exceptional circumstances access to legal advice may be delayed, but powers to do this are only available under strict criteria.
105. The Terrorism Act 2000 also allows for access to a solicitor to be delayed for up to 48 hours from the time of detention in defined circumstances that apply throughout the United Kingdom. However, the power to delay access is used very rarely: the Government is not aware that it has been used at all in any part of the United Kingdom in recent years.
Right to silence
England, Wales and Northern Ireland
109. In response to the judgement of the European Court of Human Rights in John Murray v. United Kingdom, the Government introduced provisions prohibiting the drawing of inferences from silence where no prior access to legal advice has been granted. These were contained in the Youth Justice and Criminal Evidence Act 1999, and replicated for Northern Ireland at article 36 of the Criminal Evidence (Northern Ireland) Order 1999. Commencement of the provisions in England and Wales and in Northern Ireland will follow necessary revision of the PACE Codes. However, in both jurisdictions administrative arrangements have been in place for some time to ensure compliance with the judgement.
Scotland
110. In Scotland, regardless of whether a legal adviser is present, no inferences can be drawn as to the credibility of the suspect’s evidence on any matter about which he declined to say anything while being interviewed, cautioned, or charged by the police.
Access to legal advice
England and Wales
263. As stated in the third report, in all parts of the United Kingdom, the rules governing prisoners’ contacts with their legal advisers are set out in prison rules and other internal instructions to Governors. The rules governing legal privilege apply both to convicted prisoners and prisoners on remand and are designed to safeguard their rights when contacting their legal representatives. All visits by legal advisers take place in the sight, but out of hearing, of a prison officer.
264. The Access to Justice Act 1999 brought in significant changes to the old Legal Aid Scheme. The Legal Aid Board was replaced by the Legal Services Commission (LSC), which administers the provision of publicly funded legal services. The LSC has issued new guidance on funding which is intended to make sure that cases which serve the public interest (especially those against public bodies) and those which serve the interests of justice, are funded, and frivolous actions are not. In addition, only legal firms with a contract with the LSC are able to undertake publicly funded work. The contracted firms are audited to ensure that they provide a quality service and can provide the level of professional skills and knowledge required. 
United Kingdom, Fourth periodic report to the Committee against Torture, UN Doc. CAT/C/67/Add.2, 27 May 2004, submitted 6 November 2003, §§ 101, 105, 109–110 and 263–264.
In 2004, during a debate in the House of Commons, the UK Foreign Secretary stated regarding the trial of UK citizens detained in Guantanamo Bay:
Speaking specifically in respect of our detainees, we have said that the provision of legal advice is a necessary part of any fair trial system – it is almost a sine qua non. The detainees there have not received legal advice, even though one or two of them are in the trial system. That is the background to the recent appeal to the Supreme Court, and it has been one aspect of our disagreements with the United States Government about the fairness of the trial process offered. We have repeatedly said that British detainees should either be tried as soon as possible according to principles that are recognised to be fair, or be returned to the UK. That remains our position and it has been the subject of considerable discussion between ourselves and the United States ever since Guantanamo bay received British detainees. 
United Kingdom, House of Commons, Statement by the Foreign Secretary, Hansard, 8 July 2004, Vol. 423, Debates, col. 1096.
The UK Military Manual (1958) provides: “The investigation of charges against a prisoner of war shall be carried out as quickly as circumstances permit and in such manner that his trial will take place as quickly as possible.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 230.
The manual further states that in occupied territories, the accused “must be brought to trial as rapidly as possible”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 570.
The UK LOAC Manual (2004) states in its discussion on judicial proceedings against prisoners of war: “Investigation of charges must be carried out as rapidly as circumstances permit so that the trial can take place as soon as possible.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.133.
In its discussion on the administration of criminal law in occupied territory, the manual further states: “The accused shall be brought to trial as rapidly as possible.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.64 11 .
In 2006, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
Article 14
Delay in criminal proceedings
524. The Government is committed to reducing unnecessary delay in the criminal justice system. It is rarely in the interests of justice that a case becomes protracted. Measures introduced since 1997 have played an integral part in seeking to reduce delay wherever possible, but the Government fully recognizes the need to do more. Critically, the Government is trying to ensure that the needs of victims and witnesses are considered at all stages of the process. 
United Kingdom, Sixth periodic report to the Human Rights Committee, UN Doc. CCPR/C/GBR/6, 18 May 2007, submitted 1 November 2006, § 524.
The UK Military Manual (1958) provides, regarding disciplinary punishment of a prisoner of war: “He must be allowed to call witnesses.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 208.
The manual further provides that “in any judicial proceedings against him, the prisoner of war is entitled to … call witnesses” and that “Defending Counsel … must also be allowed to interview any witness for the defence, including prisoners of war”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 227.
With respect to cases of occupation, the manual states that the “accused have the right to present evidence necessary to their defence and may, in particular, call witnesses”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 571.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
The manual also provides that before awarding any disciplinary punishment to a civilian internee, “the accused must be … given an opportunity to … to defend himself. In particular, he must be allowed to call witnesses …”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.9.
In its discussion on judicial proceedings against prisoners of war, the manual states: “In good time before the trial to enable him to exercise them, the accused must be informed of his rights to … call witnesses.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.133.
In its discussion on disciplinary measures against prisoners of war, the manual states: “Before any disciplinary award is announced, the accused … must be allowed to call witnesses.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.125.
Furthermore, in its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … personal presence at the trial including the facility to present necessary evidence for the defence, calling witnesses as required”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
Lastly, in its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … the attendance of both prosecution and defence witnesses.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
The UK Military Manual (1958) provides, regarding disciplinary punishment of a prisoner of war: “If necessary, [the prisoner of war must] be given the services of a qualified interpreter.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 208.
The manual further states: “In any judicial proceedings against him, the prisoner of war is entitled … if he so desires, to have the services of a qualified interpreter.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 227.
With respect to situations of occupation, the manual states:
Unless they voluntarily waive such assistance, accused persons must be aided by an interpreter, both during preliminary investigation and during the hearing in court. They have the right at any time to object to the interpreter and to ask for his replacement. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 571.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
Before any disciplinary punishment is awarded, the accused must be given full details of the offence and be given an opportunity to explain his conduct and to defend himself. In particular, he must be allowed to call witnesses and, if necessary, given the services of a qualified interpreter. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.9.
In its discussion on judicial proceedings against prisoners of war, the manual states: “In good time before the trial to enable him to exercise them, the accused must be informed of his rights to … have the services of a competent interpreter.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.133.
In its discussion on disciplinary measures against prisoners of war, the manual states: “Before any disciplinary award is announced, the accused must …, if necessary, be given the services of a qualified interpreter.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.125.
Furthermore, in its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … an interpreter to assist both during the preliminary investigation and at the trial, together with the right to object to the interpreter at any time and to ask for his replacement”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
Lastly, in its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … the attendance of …, if necessary, an interpreter.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … anyone charged with an offence shall have the right to be tried in his presence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … personal presence at the trial.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
Lastly, in its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … trial in person.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
The UK LOAC Manual (2004) states in its chapter on prisoners of war:
The capturing power may ask further questions [from prisoners of war] to obtain tactical or strategic information but the prisoner of war cannot be forced to disclose any such information … No physical or mental torture or any other form of coercion may be used to obtain information. Nor may those who refuse to answer be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.34.
The manual further explains:
No moral or physical coercion may be exerted on a prisoner of war to induce him to admit his guilt of any offence charged. This rule would exclude, for example, the use of hypnosis, drugs and oppressive methods of questioning. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.131.
In its chapter on the protection of civilians in the hands of a party to the conflict, the manual states:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … no one shall be compelled to testify against himself or to confess guilt. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … the right of the accused not to be compelled to testify against himself.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, the noble Lord raises two issues. We have made representations to the United States Government in regard to the physical conditions under which the individuals are held – for example, the inadequate facilities for exercise and the inadequate facilities for contact with their families. Representatives of the International Red Cross have visited Guantanamo Bay and are giving their advice to the United States Government.
The more difficult issue pinpointed by my noble friend concerns coercion. It might be argued that a system of plea-bargaining where the alternative to admitting to charges is to face the death penalty is a coercive and difficult line of pre-trial cross-examination.
These matters are still under discussion with the United States. As I indicated when we last debated this issue, my right honourable friend the Foreign Secretary is dealing with these matters with his opposite number, Colin Powell. He has raised the serious concerns that we have over the kind of issues raised by the noble Lord and they have agreed that discussions on them will continue. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 17 July 2003, Vol. 651, Debates, cols. 965–968.
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
Article 11 (Monitoring of procedures to prevent torture or other forms of ill-treatment)
Right to silence
England, Wales and Northern Ireland
109. In response to the judgement of the European Court of Human Rights in John Murray v. United Kingdom, the Government introduced provisions prohibiting the drawing of inferences from silence where no prior access to legal advice has been granted. These were contained in the Youth Justice and Criminal Evidence Act 1999, and replicated for Northern Ireland at article 36 of the Criminal Evidence (Northern Ireland) Order 1999. Commencement of the provisions in England and Wales and in Northern Ireland will follow necessary revision of the PACE Codes [Codes of Practice issued under the Police and Criminal Evidence Act 1984]. However, in both jurisdictions administrative arrangements have been in place for some time to ensure compliance with the judgement.
Scotland
110. In Scotland, regardless of whether a legal adviser is present, no inferences can be drawn as to the credibility of the suspect’s evidence on any matter about which he declined to say anything while being interviewed, cautioned, or charged by the police.
Article 15 (Admissibility of confession evidence)
England and Wales
278. As explained in paragraphs 121–123 of the initial report, under both statutory and common law, a confession that may have been obtained by oppression is inadmissible in the United Kingdom as evidence against the person who made that confession. When considering the admissibility of a confession the court must have in mind the provisions of sections 76 and 78 of the Police & Criminal Evidence Act 1984. Under section 76, the court must exclude a confession if it was or may have been obtained by oppression or in consequence of anything said or done which was likely to render a confession unreliable. Under section 78, the court may exclude a confession if, having regard to all the circumstances, its admission as evidence would have an unfair effect on the proceedings. Human Rights legislation (ECHR [1950 European Convention on Human Rights] article 3 as incorporated through the Human Rights Act 1998) also provides that the court may exclude a confession if it was obtained in violation of convention rights.
Scotland
279. Although the PACE Act 1984 does not extend to Scotland, the same principle, that evidence of a confession obtained by oppression is inadmissible, also applies in Scotland.
Northern Ireland
280. Section 76 of the Terrorism Act provided for the admissibility of confession evidence in scheduled offences going before a Diplock court in Northern Ireland. The first annual report by Lord Carlisle, the Independent Reviewer of the Terrorism Act, suggested that consideration be given to the need for section 76 to continue to exist. Following a consultation exercise, Ministers were satisfied that practice had developed to the point similar to the PACE standard for confession evidence and, in July 2002, section 76 was repealed. The United Kingdom is not satisfied that section 76 was of itself a breach of the Convention. Nor does the United Kingdom accept that a provision in Northern Ireland different from the rest of the United Kingdom is an inherent breach of the Convention. Within the United Kingdom, different bodies of law apply in England and Wales, Scotland, and Northern Ireland.  
United Kingdom, Fourth periodic report to the Committee against Torture, UN Doc. CAT/C/67/Add.2, 27 May 2004, submitted 6 November 2003, §§ 109–110 and 278–280.
In 2004, in a written answer to a question concerning the 1984 Convention against Torture, 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. 
United Kingdom, House of Commons, Written answer by the Minister of State, Home Office, Hansard, 8 November 2004, Vol. 666, Written Answers, col. WA53.
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. 
United Kingdom, Response by the United Kingdom to Recommendations by the United Nations Committee against Torture following its Examination of the United Kingdom’s 4th Periodic Report on 17 and 18 November 2004, 20 April 2006, printed in House of Lords House of Commons Joint Committee on Human Rights, Government Response to the Committee’s Nineteenth Report of this Session: The UN Convention Against Torture (UNCAT), Thirtieth Report of Session 2005–06, Vol. II: Oral and Written Evidence, HL Paper 185-II/HC 701-II, 2006, Ev 68.
In 2006, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
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 [Anti-terrorism, Crime and Security] 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.
113. As regards paragraph 17 of the concluding observations (“The State party should reconsider, with a view to repealing it, the principle that juries may draw negative inferences from the silence of accused persons. This is to ensure compliance with the rights guaranteed under article 14 of the Covenant.”), the key question in addressing this issue is, whether the power to draw inferences from a person’s silence is compatible in principle with the right not to incriminate oneself. It is important to note that, while the ECtHR [European Court of Human Rights] has made clear that the right to silence and privilege against self incrimination is at the heart of a fair trial, and particular caution is required by a domestic court before it can invoke an accused’s silence against him, that Court has also made clear that the right is not absolute and that it must be considered in the context of the particular circumstances of each case.
114. The ECtHR has stated, in Murray v UK (1996 22 EHRR 29) that whether the drawing of adverse inferences from an accused’s silence infringes article 6 of the ECHR [European Convention on Human Rights] is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight to be attached to them by national courts in their assessment of the evidence and the degree of compulsion inherent in the situation.
115. It is also important to note that, under British law, an inference cannot be drawn simply from failure to answer police questions. An inference may only be drawn if the defendant fails to answer police questions and then also fails to testify at trial, or if the defendant fails to mention something, which, in the circumstances existing at the time, he could reasonably have been expected to mention, and which he then seeks to rely upon in his defence at trial. The aim of the British legislation is to discourage an accused from fabricating a defence late in the day and to encourage the accused to make a speedy disclosure of any genuine defence or fact which may go to establishing a genuine defence. It is not to secure convictions at the expense of defendant’s rights.
116. The British Courts will have due regard to the requirements of article 6 of the ECHR and to the overall fairness of proceedings in determining whether to invoke an accused’s silence against a defendant. This was demonstrated in the recent case of R v Becouarn [2005], UKHL 55, in which the House of Lords found that the recommended direction on drawing inferences was sufficiently fair to defendants, emphasizing as it did that the jury had to conclude that the only sensible explanation for a defendant’s failure to give evidence was that he had no answer to the case against him, or none that could have stood up to cross-examination. It was noted that trial judges had full discretion to adapt the direction if they considered that by doing so it would provide the best guidance to a jury and the fairest representation of the issues.
117. The Government considers that the ability to draw negative inferences from an accused’s silence under British law cannot be said to be, on its face, a breach of article 14, and that each case will be subject to the supervisory scrutiny of the Courts to ensure that the requirements of a fair trial are met. The arrangements therefore will remain in place.
Article 14
Right of silence
526. The Criminal Justice and Public Order Act 1994, which came into force in England and Wales on 10 April 1995, introduced provisions similar to those in Northern Ireland. They preserve the right of a suspect to remain silent when questioned by the police but permit inferences to be drawn from silence if:
- A suspect has, without reasonable explanation, failed to tell the police something which he later uses in his defence;
- A defendant does not give evidence on his own behalf at trial;
- A suspect fails to account for his presence at a particular time and place or to account for objects, substances or marks on his person at the time of his arrest;
- There are important safeguards to this which can be found in paragraph 387 of the fifth periodic report.
527. Following the ECHR case of Murray (1996), these safeguards were further enhanced by section 58 of the Youth Justice and Criminal Evidence Act 1999. This amended the Criminal Justice and Public Order Act 1994 provisions to prevent inferences being drawn if a suspect has not had the opportunity to speak to a solicitor and PACE [Police and Criminal Evidence Act] Code C was amended accordingly with effect from 1 April 2003. 
United Kingdom, Sixth periodic report to the Human Rights Committee, UN Doc. CCPR/C/GBR/6, 18 May 2007, submitted 1 November 2006, §§ 54, 113–117 and 526–527.
The UK Military Manual (1958) provides that if the trial of a prisoner of war is held in camera, “the Detaining Power shall notify the Protecting Power” of the reasons why. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 229.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its chapter on internal armed conflict, the manual states: “Indispensable judicial guarantees include as a minimum … public judgment.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
In 2004, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs stated regarding the trial of UK citizens before a US military commission:
[T]he view of the Attorney-General was that the military commission, as constituted, would not provide the type of process that we would afford to British nationals. We have been attempting to ensure that the legal process will respect the human rights of the detainees, including the right to a fair and public hearing by a competent, independent and impartial tribunal, established by law. 
United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, Hansard, 24 March 2004, Vol. 419, Debates, col. 307WH.
The UK Military Manual (1958) states: “Every prisoner of war …must be fully informed of this right [of appeal or petition] and also of any time limit for appeal or petition.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 232.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … a convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.  
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
With regard to prisoners of war, the manual states: “Every prisoner of war must be given the same rights of petition and appeal against finding and sentence as members of the armed forces of the detaining power and must be fully informed of those rights and of any time limits.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.141.
Lastly, in its discussion on the administration of criminal law in occupied territory, the manual states:
Although a convicted person has no specific right of appeal under the law of armed conflict, a right of appeal may exist under the law applied by the court. Even where that law makes no provision for appeal, the convicted person has a right to petition the competent authority of the occupying power in respect of finding and sentence. He must be fully informed of his rights of appeal and of any time limits within which he must present his appeal or petition. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.70 11 .
The UK Military Manual (1958) states:
Every prisoner of war must be given, in the same manner as members of the armed forces of the Detaining Power, the right of appeal or petition against any judgement or sentence passed on him, with a view to the quashing of the sentence or the reopening of the trial. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 232.
With respect to situations of occupation, the manual provides:
There is no absolute right of appeal against sentence. The Civilian Convention Article 73 merely lays down that “the convicted person shall have the right of appeal provided for by the laws applied by the court”. However, where the law makes no provision for appeal, the convicted person must be given the right to petition the competent authority of the Occupying Power against the finding and sentence. In either case, he must be fully informed of his right to appeal or petition and of the time limit within which he may do so. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 572.
The UK LOAC Manual (2004) states: “Every prisoner of war must be given the same rights of petition and appeal against finding and sentence as members of the armed forces of the detaining power and must be fully informed of those rights and of any time limits.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.141.
In its discussion on the administration of criminal law in occupied territory, the manual states:
Although a convicted person has no specific right of appeal under the law of armed conflict, a right of appeal may exist under the law applied by the court. Even where that law makes no provision for appeal, the convicted person has a right to petition the competent authority of the occupying power in respect of finding and sentence. He must be fully informed of his rights of appeal and of any time limits within which he must present his appeal or petition. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.70 11 .
In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
On 3 July, the United States designated six detainees, including two British nationals held at Guantanamo bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised, and will continue to raise them energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about that over the weekend and will speak to him again in the next few days.
We are still seeking information about the conduct of any trial. Indeed, we continue to express strong views about the way in which we hope that a trial will be conducted. The same applies to the right of appeal.
I think that the hon. Gentleman’s question concerns whether the Geneva convention should apply to the detainees, and I have already made it clear that, in our view, it should. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 7 July 2003, Vol. 408, Debates, cols. 751–759.
The UK Military Manual (1958) provides: “No internee may be punished more than once for the same act or on the same count.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 71.
The manual also states: “A prisoner of war may not be punished more than once for the same act or on the same charge.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 204.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
With regard to prisoners of war, the manual provides: “A prisoner of war may not be punished more than once for the same act or on the same charge.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.34.
In 2004, during a debate in the House of Lords, the UK Attorney General stated:
My Lords, the noble Lord first asked whether soldiers were being put in double jeopardy, because he said that after being acquitted by a court martial they might be subject to a criminal trial. Let me put his mind absolutely at rest. There is no question of that. The doctrine of autre fois acquit, as it is known, applies. If a serviceman is acquitted by a court martial he will not stand trial again before a criminal court. A quite different situation arises where there has not been a trial in the court martial at all. 
United Kingdom, House of Lords, Statement by the Attorney General, Hansard, 25 October 2004, Vol. 665, Debates, col. 1058.
In 2003, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
Article 14
Retrial for Serious Offences (Double Jeopardy)
538. The Law Commission reported on “Double Jeopardy and Prosecution Appeals” in 2001. Part 10 of the Criminal Justice Act 2003 reforms the law relating to double jeopardy, by permitting retrials in respect of a number of very serious offences, where new and compelling evidence has come to light. The Government considers that these provisions are consistent with article 14(7) of the Covenant, as interpreted by Human Rights Committee General Comment No. 13 of 13 April 1984. 
United Kingdom, Sixth periodic report to the Human Rights Committee, UN Doc. CCPR/C/GBR/6, 18 May 2007, submitted 1 November 2006, § 538.