If I could shimmy like my sister Kate
Shake it like jelly on a plate
My mama wanted to know last night
How sister Kate could do it oh so nice
Now, all the boys in the neighborhood
Knew Kate could shimmy, and it’s mighty good
I may be late but I’ll be up to date
When I can shimmy like my sister Kate.
I mean, shake it like my sister Kate.

Now if I could shake it like my sister Kate,
Never stay home, stay out too late
I get my stuff about as high as a kite
You know I do it for you every night.
Now, all the boys in the neighborhood
Knew Kate could shimmy, and it’s mighty good
I know I’m late but I’ll be up to date
When I can shimmy like my sister Kate.
I mean, shake it like my sister Kate.

t

Jelly Roll Morton (I think)

…..shall ensure that any statement which is established to have been made as a result of torture…

Instead of facing the difficulty head on and perhaps finding himself in the Lord Hope camp, he tries a shimy.
Let’s just forget that blasted word “established” and create a new test.
Much as I want to agree with this approach, the rules of statutory interpretation lead me to the majority view.

Brian replies: Well, I think it all depends on which you regard as more important: respect for the rules of statutory interpretation of a specific international agreement taken in isolation (whose importance I certainly don’t disparage) or avoiding an interpretation of a major international Covenant which will in practice frustrate its principal purpose and will also conflict in its practical effect with the rest of the law in respect of torture. The latter seems to me more consistent both with common sense (which I recognise isn’t necessarily the same thing as a correct application of a legal text) and with the preservation of an important principle not only of a specific international covenant but also of customary international and domestic common law going back, in the case of UK common law, for more than three centuries. In other words, I think that the law lords would have been entitled to adopt a test for ‘establishing’ whether a piece of information had probably been obtained by torture which reflects not only Article 15 of UNCAT but also the whole corpus of international and national common and statute law, including incidentally the Human Rights Act and European Convention of Human Rights, as well as all the other numerous authorities cited throughout all seven judgments. As I understand it, that was the view taken by Lord Bingham, invariably an exceptionally careful and scrupulous judge, and his two next most senior colleagues. This is not, as I see it, a conflict between three judges taking an adventurously ambitious view of their right and duty to make new law as well as to interpret existing law, versus four of their brethren who took a more conservative and strictly interpretative view of the court’s functions: it seems to me more a question of interpreting the whole corpus of existing law and not just one instrument of it, however important, plus avoiding an interpretation of one instrument that would have the practical effect of frustrating its obviously intended effect.

Incidentally, what’s a ’shimy’?

Jarndyce has posted some interesting (and more optimistic) comments on this on his own blog: well worth a visit.

Brian

There is always the temptation to excuse the practices of torture by considering the severity of the accusations against the tortured but the reality of this evil practice was brought home to me by an asylum seeker who’s care I was involved with as a surgical SHO during the late 1980s at St Georges. This patient had been repeatedly tortured in some tinpot African dictator’s gaol until his anal sphincter had been destroyed, leading to permanent faecal incontinence and a spirit that had been broken. He shook as I took a medical history detailing his torture and the flashbacks he experienced due to his PTSD.

Distasteful to recount on this blog, I’m sure, but the reality of torture is that it’s evil, the people who carry it out are evil and anyone who profits by it are tarred with the same brush.

Patrick