As things stand in British law, evidence obtained under torture is inadmissible – unless inflicted by a foreigner abroad. The need for greater security does not make this logic any less absurd, says Brian Barder
Tuesday October 12, 2004
Should we use evidence obtained by torture in the name of the misleadingly named “war on terrorism”? Two senior British judges say yes, notwithstanding Britain’s obligation under the UN convention against torture (Uncat) to “ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings”. The House of Lords, our highest court, will decide shortly whether the two judges were right.
Last August the court of appeal decided by a majority of two to one that the home secretary, David Blunkett, was entitled to rely on information derived from torture as a basis for imprisoning aliens as terrorist suspects, indefinitely and without charge – provided that the torturers were foreign, and had practised the torture abroad, without any encouragement by British authorities. British torture: bad. Foreign torture: OK.
One of the two judges in the majority, Lord Justice Laws, declared that he could not believe “that the law should sensibly impose on the secretary of state a duty of solemn inquiry as to the interrogation methods used by agencies of other sovereign states. Apart from the practical unreality, I can find no sound juridical base for the imposition of such a requirement.”
The judgment prompted surprisingly little public disquiet, or even debate. In a gloating article in the Independent, the home secretary welcomed it.
Lord Justice Neuberger, the judge in the minority in the appeal court, took a fundamentally opposite view. He concluded that “it is not open to Siac [the Special Immigration Appeals Commission, the only court to which those detained as terrorist suspects can appeal] to receive in evidence, or to take into account, a statement sought to be adduced by the secretary of state, if that statement was made under torture”. He went on: “This applies whether the statement was made by the appellant or a third party, and irrespective of the identity of the torturers.”
In spite of a wealth of expert legal opinion in support of these conclusions, the majority judges disagreed with Neuberger. They were seemingly unimpressed by the obvious fact, quite apart from considerations of international law and morality, that evidence got by torture is inherently unreliable. Most people will eventually say anything to stop being tortured. It’s hard to see how the home secretary can make the necessary assessment of the reliability of evidence on which to base a decision to lock up a terrorist suspect without making a “solemn inquiry” as to how it was obtained. If it turns out to have been extracted by torture, he ought to dismiss it as manifestly unreliable, unless independently corroborated by more cogent evidence. Common sense dictates that Siac has the same duty.
Some argue that the home secretary could not responsibly ignore evidence of a specific terrorist threat against a British target just because the information was derived from torture. But no one suggests that he should. If some wretch in a foreign jail tries to save his remaining fingernails by accusing two foreign nationals living in Burnley of planning to bomb Buckingham Palace on the next anniversary of September 11, there could be no objection in law or common sense to a visit by Special Branch to Burnley for a quick look round and a chat with the pair. If on arrival they find bomb-making equipment, a map of the Mall highlighting the palace in yellow and September 11 ringed on a calendar on the wall, that would obviously be admissible evidence on which to base criminal charges, even if the original tip-off had relied on torture. But that is a far cry from treating the original uncorroborated torture-based tip-off in isolation as a basis for indefinitely jailing them without trial.
There were other unwelcome surprises from the judges. Lords Justices Laws and Pill acknowledged that under Uncat, Britain is obliged to “ensure” that any statement made as a result of torture is not invoked as evidence. They seem to have accepted that the home secretary could not logically be entitled to rely on information that he would be unable to disclose in court as evidence of the reasonableness of his decisions. But because Uncat has not been incorporated into British domestic law, and because Britain has (inexcusably) not obeyed Uncat’s implied injunction to legislate to “ensure” that torture- derived evidence is inadmissible “in any proceedings”, its provisions are not binding on our courts. A barrister representing the detainees sought permission to argue that Uncat was part of customary international law and therefore a British common-law obligation, enforceable by our courts, but the court refused to consider this important argument because it was introduced too late.
Is it unreasonable to ask our higher courts to apply ordinary principles of equity and morality to their decisions, and not to rely on a questionable deconstruction of the wording of an international convention in order to arrive at such a counterintuitive conclusion – one that is not only contrary to our sense of right and wrong, but also seriously harmful in the licence it provides for torturers in future?
There is another way of looking at the issue. John Greenwell, a former legal adviser to the Australian attorney general’s department, doesn’t see the problem as whether or not particular evidence should be admissible. Instead, he argues that the home secretary would be acting unlawfully in exercising his power to detain terrorist suspects on the basis of information obtained by torture, because for him to do so would involve Britain condoning crimes against humanity, and also prevent it from complying with its international obligations under the torture convention. This approach echoes Lord Justice Neuberger’s minority opinion, but from a different angle.
The appeal court’s judgment disturbingly recalls that Siac is not bound by the ordinary rules governing the admissibility of evidence. It may admit hearsay evidence, even if it is not independently corroborated. In a case in 2000 the appeal court, later upheld by the House of Lords, ruled that the home secretary is not obliged to prove any specific facts on which he relies to detain a suspect, even to a low level of probability. A general view of the circumstances and reasonable suspicion of possible future behaviour are enough. So when Siac – whose proceedings are the nearest thing to a fair trial that those detained without charge are allowed to have – hears challenges against the home secretary’s decisions to detain a foreign national without charge, it cannot exclude evidence because it is hearsay or obtained by torture, nor even require proof of any of the facts adduced against the detainee.
The appeal to the House of Lords against the torture judgment should be seen in conjunction with the hearing before nine law lords last week on the legality of the government’s opt-out of the provision in the European convention on human rights that bans detention without trial. Without this suspension of the right to liberty, the home secretary’s powers to detain people as suspected terrorists, under which 11 foreign nationals are currently locked up without charge or trial, would clearly be contrary to the convention.
We don’t yet know when the law lords will give their ruling on that point, nor when they intend to hear the argument in the torture appeal. But the facts that have emerged in the two cases demonstrate that in the attempt to balance the need to counter terrorism against the protection of our traditional civil liberties, the scales have tipped too far in the direction of security, with little evidence that recent security measures have achieved results sufficient to justify them. The opt-out case, and the appeal on the issue of torture, give the law lords what is probably the last opportunity to correct that balance by declaring incompatible with human rights illiberal laws and judgments which do little to enhance our security, but threaten the very freedoms they purport to protect.
Sir Brian Barder is a former British ambassador and high commissioner, now retired. He was a lay member of the Special Immigration Appeals Commission (Siac) from its creation until his resignation early this year.