(back to preceding text)

    36.  A Committee against Torture was established under article 17 of the Torture Convention to monitor compliance by member states. The Committee has recognised a duty of states, if allegations of torture are made, to investigate them: PE v France, 19 December 2002, CAT/C/29/D/193/2001, paras 5.3, 6.3; GK v Switzerland, 12 May 2003, CAT/C/30/D/219/2002), para 6.10. The clear implication is that the evidence should have been excluded had the complaint been verified.

    37.  In Canada, article 15 of the Torture Convention has been embodied in the criminal code: see India v Singh 108 CCC (3d) 274 (1996), para 20. In France, article 15 has legal effect (French Republic v Haramboure, Cour de Cassation, Chambre Criminelle, 24 January 1995, No. de pourvoi 94-81254), and extradition to Spain was refused where allegations that a witness statement had been procured by torture in Spain was judged not to have been adequately answered (Le Ministère Public v Irastorza Dorronsoro, Cour d'Appel de Pau, No 238/2003, 16 May 2003). In the Netherlands, it was held by the Supreme Court to follow from article 3 of the European Convention and article 7 of the ICCPR that if witness statements had been obtained by torture they could not be used as evidence: Pereira, 1 October 1996, nr 103.094, para 6.2. In Germany, as in France, article 15 has legal effect: El Motassadeq, decision of the Higher Regional Court of Hamburg, 14 June 2005, para 2.

    38.  In the United States, torture was recognised to be prohibited by the law of nations even before the Torture Convention was made: Filartiga v Peña-Irala 630 F 2d 876 (1980). Earlier still, it had been said to be

"unthinkable that a statement obtained by torture or by other conduct belonging only in a police state should be admitted at the government's behest in order to bolster its case": LaFrance v Bohlinger 499 F 2d 29 (1974), para 6.

(6)  The rationale of the exclusionary rule.

    39.  In their work on The United Nations Convention against Torture (1988), p 148, Burgers and Danelius suggest that article 15 of the Torture Convention is based on two principles:

"The rule laid down in article 15 would seem to be based on two different considerations. First of all, it is clear that a statement made under torture is often an unreliable statement, and it could therefore be contrary to the principle of 'fair trial' to invoke such a statement as evidence before a court. Even in countries whose court procedures are based on a free evaluation of all evidence, it is hardly acceptable that a statement made under torture should be allowed to play any part in court proceedings.

In the second place, it should be recalled that torture is often aimed at ensuring evidence in judicial proceedings. Consequently, if a statement made under torture cannot be invoked as evidence, an important reason for using torture is removed, and the prohibition against the use of such statements as evidence before a court can therefore have the indirect effect of preventing torture."

It seems indeed very likely that the unreliability of a statement or confession procured by torture and a desire to discourage torture by devaluing its product are two strong reasons why the rule was adopted. But it also seems likely that the article reflects the wider principle expressed in article 69(7) of the Rome Statute of the International Criminal Court, which has its counterpart in the Rules of Procedure and Evidence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda:

"Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if:

(a)  the violation casts substantial doubt on the reliability of the evidence; or

(b)  the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings."

The appellants contend that admission as evidence against a party to legal proceedings of a confession or an accusatory statement obtained by inflicting treatment of the severity necessary to fall within article 1 of the Torture Convention will "shock the community", infringe that party's rights and the fairness of the proceedings (R v Oickle: see para 17 above), shock the judicial conscience (United States v Hensel 509 F Supp 1364 (1981), p 1372), abuse or degrade the proceedings (United States v Toscanino 500 F 2d 267 (1974), p 276), and involve the state in moral defilement (The People (Attorney General) v O'Brien: see para 17 above).

(7)  The impact of terrorism

    40.  The European Court has emphasised that article 3 of the European Convention is an absolute prohibition, not derogable in any circumstances. In Chahal v United Kingdom (1996) 23 EHRR 413, para 79, it ruled:

"79.  Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation."

That the Torture Convention, including article 15, enjoys the same absolute quality is plain from the text of article 2, quoted in para 32 above.

    41.  It is true, as the Secretary of State submits, that States Members of the United Nations and the Council of Europe have been strongly urged since 11 September 2001 to cooperate and share information in order to counter the cruel and destructive evil of terrorism. But these calls have been coupled with reminders that human rights, and international and humanitarian law, must not be infringed or compromised. Thus, while the Council of Europe's Parliamentary Assembly recommendation 1534 of 26 September 2001 refers to co-operation "on the basis of the Council of Europe's values and legal instruments", it also refers to Parliamentary Assembly Resolution 1258, para 7 of which states:

"These attacks have shown clearly the real face of terrorism and the need for a new kind of response. This terrorism does not recognise borders. It is an international problem to which international solutions must be found based on a global political approach. The world community must show that it will not capitulate to terrorism, but that it will stand more strongly than before for democratic values, the rule of law and the defence of human rights and fundamental freedoms."

The Council of Europe Convention on the Prevention of Terrorism of 16 May 2005, recalling in its preamble

"the need to strengthen the fight against terrorism and reaffirming that all measures taken to prevent or suppress terrorist offences have to respect the rule of law and democratic values, human rights and fundamental freedoms as well as other provisions of international law, including, where applicable, international humanitarian law",

went on to provide:

"Article 3 - National prevention policies

1  Each Party shall take appropriate measures, particularly in the field of training of law enforcement authorities and other bodies, and in the fields of education, culture, information, media and public awareness raising, with a view to preventing terrorist offences and their negative effects while respecting human rights obligations as set forth in, where applicable to that Party, the Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, and other obligations under international law."

Other similar examples could be given.

    42.  The United Nations pronouncements are to the same effect. Thus Security Council resolution 1373 of 28 September 2001 called for co-operation and exchange of information to prevent terrorist acts, but also reaffirmed resolution 1269 of 19 October 1999 which called for observance of the principles of the UN Charter and the norms of international law, including international humanitarian law. By Security Council resolution 1566 of 8 October 2004 states were reminded

"that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, and in particular international human rights, refugee and humanitarian law."

Again, other similar examples could be given. The General Assembly has repeatedly made the same point: see, for example, resolution 49/60 of 9 December 1994; resolution 51/210 of 17 December 1996; and resolution 59/290 of 13 April 2005. The Secretary General of the UN echoed the same theme in statements of 4 October 2002, 6 March 2003 and 10 March 2005.

    43.  The events of 11 September prompted the Committee against Torture to issue a statement on 22 November 2001 (CAT/C/XXVII/Misc 7) in which it said:

"The Committee against Torture condemns utterly the terrorist attacks of September 11 and expresses its profound condolences to the victims, who were nationals of some 80 countries, including many State parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee is mindful of the terrible threat to international peace and security posed by these acts of international terrorism, as affirmed in Security Council resolution 1368. The Committee also notes that the Security Council in resolution 1373 identified the need to combat by all means, in accordance with the Charter of the United Nations, the threats caused by terrorist acts.

The Committee against Torture reminds State parties to the Convention of the non-derogable nature of most of the obligations undertaken by them in ratifying the Convention.

The obligations contained in Articles 2 (whereby 'no exceptional circumstances whatsoever may be invoked as a justification of torture'), 15 (prohibiting confessions extorted by torture being admitted in evidence, except against the torturer), and 16 (prohibiting cruel, inhuman or degrading treatment or punishment) are three such provisions and must be observed in all circumstances.

The Committee against Torture is confident that whatever responses to the threat of international terrorism are adopted by State parties, such responses will be in conformity with the obligations undertaken by them in ratifying the Convention against Torture."

A statement to similar effect was made by the Committee against Torture, the Special Rapporteur on Torture, the Chairperson of the 22nd session of the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture and the Acting United Nations Commissioner for Human Rights on 26 June 2004 (CAT Report to the General Assembly, A/59/44 (2004), para 17). In its Conclusions and Recommendations on the United Kingdom dated 10 December 2004 (CAT/C/CR/33/3), having received the United Kingdom's fourth periodic report, the Committee welcomed the Secretary of State's indication that he did not intend to rely upon or present evidence where there is a knowledge or belief that torture has taken place but recommended that this be appropriately reflected in formal fashion, such as legislative incorporation or undertaking to Parliament, and that means be provided whereby an individual could challenge the legality of any evidence plausibly suspected of having been obtained by torture in any proceeding.

    44.  This recommendation followed the judgment of the Court of Appeal in these appeals. Concern at the effect of that judgment was also expressed by the International Commission of Jurists on 28 August 2004, which declared that "Evidence obtained by torture, or other means which constitute a serious violation of human rights against a defendant or third party, is never admissible and cannot be relied on in any proceedings," and by the Council of Europe Commissioner for Human Rights, Mr Gil-Robles in his Report cited in para 35 above. In a Report of 9 June 2005 on a visit made to the United Kingdom in March 2004, the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT/Inf (2005) 10), para 31, observed:

"31.  During the 2004 visit, several persons whom the delegation met were very concerned that the SIAC could apparently take into consideration evidence that might have been obtained elsewhere by coercion, or even by torture. Such an approach would contravene universal principles governing the protection of human rights and the prohibition of torture and other forms of ill-treatment, to which the United Kingdom has adhered."

In Resolution 1433, adopted on 26 April 2005, on the Lawfulness of Detentions by the United States in Guantanamo Bay, the Parliamentary Assembly of the Council of Europe called on the United States to cease the practice of rendition and called on member states to respect their obligation under article 15 of the Torture Convention.

    45.  The House has not been referred to any decision, resolution, agreement or advisory opinion suggesting that a confession or statement obtained by torture is admissible in legal proceedings if the torture was inflicted without the participation of the state in whose jurisdiction the proceedings are held, or that such evidence is admissible in proceedings related to terrorism.

    46.  While counsel for the Secretary of State questions the effect and applicability of some of the material on which the appellants rely, he founds his case above all on the statutory scheme established by Part 4 of the 2001 Act. He builds on the appellants' acceptance that the Secretary of State may, when forming the reasonable belief and suspicion required for certification under section 21, and when acting on that belief to arrest, search and detain a suspect, act on information which has or may have been obtained by torture inflicted in a foreign country without British complicity. That acceptance, he submits, supports the important and practical need for the security services and the Secretary of State to obtain intelligence and evidence from foreign official sources, some of which (in the less progressive countries) might dry up if their means of obtaining intelligence and evidence were the subject of intrusive enquiry. But it would create a mismatch which Parliament could not have intended if the Secretary of State were able to rely on material at the certification stage which SIAC could not later receive. It would, moreover, emasculate the statutory scheme, which is specifically designed to enable SIAC, constituted as it is, to see all relevant material, even such ordinarily inadmissible material as may be obtained on warranted intercepts. This is reflected in rule 44(3) of the applicable Rules, which dispenses with all rules of evidence, including any that might otherwise preclude admission of evidence obtained by torture in the circumstances postulated. This is not a negligible argument, and a majority of the Court of Appeal broadly accepted it. There are, however, in my opinion, a number of reasons why it must be rejected.

    47.  I am prepared to accept (although I understand the interveners represented by Mr Starmer QC not to do so) that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6. Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.

    48.  This is not an unusual position. It arises whenever the Secretary of State (or any other public official) relies on information which the rules of public interest immunity prevent him adducing in evidence: Makanjuola v Commissioner of Police of the Metropolis [1992] 3 All ER 617, 623 e to j; R v Chief Constable of West Midlands Police, Ex p Wiley [1995] 1 AC 274, 295F-297C. It is a situation which arises where action is based on a warranted interception and there is no dispensation which permits evidence to be given. This may be seen as an anomaly, but (like the anomaly to which the rule in R v Warickshall gives rise) it springs from the tension between practical common sense and the need to protect the individual against unfair incrimination. The common law is not intolerant of anomaly.

    49.  There would be a much greater anomaly if the duty of SIAC, hearing an appeal under section 25, were to decide whether the Secretary of State had entertained a reasonable belief and suspicion at the time of certification. But, as noted above in para 5, SIAC's duty is to cancel the certificate if it considers that there "are" no reasonable grounds for a belief or suspicion of the kind referred to. This plainly refers to the date of the hearing. The material may by then be different from that on which the Secretary of State relied. He may have gathered new and better information; or some of the material on which he had relied may have been discredited; or he may have withdrawn material which he was ordered but was unwilling to disclose. SIAC must act on the information lawfully before it to decide whether there are reasonable grounds at the time of its decision.

    50.  I am not impressed by the argument based on the practical undesirability of upsetting foreign regimes which may resort to torture. On the approach of the Court of Appeal majority, third party torture evidence, although legally admissible, must be assessed by SIAC in order to decide what, if any, weight should be given to it. This is an exercise which could scarcely be carried out without investigating whether the evidence had been obtained by torture, and, if so, when, by whom, in what circumstances and for what purpose. Such an investigation would almost inevitably call for an approach to the regime which is said to have carried out the torture.

    51.  The Secretary of State is right to submit that SIAC is a body designed to enable it to receive and assess a wide range of material, including material which would not be disclosed to a body lacking its special characteristics. And it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power on SIAC to receive third party torture evidence. But the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all. Counsel for the Secretary of State acknowledges that during the discussions on Part 4 the subject of torture was never the subject of any thought or any allusion. The matter is governed by the principle of legality very clearly explained by my noble and learned friend Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131:

"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

    52.  I accept the broad thrust of the appellants' argument on the common law. The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice. But the principles of the common law do not stand alone. Effect must be given to the European Convention, which itself takes account of the all but universal consensus embodied in the Torture Convention. The answer to the central question posed at the outset of this opinion is to be found not in a governmental policy, which may change, but in law.

    53.  The appellants broaden their argument to contend that all the principles on which they rely apply to inhuman and degrading treatment, if inflicted by an official with the requisite intention and effect, as to torture within the Torture Convention definition. It is, of course, true that article 3 of the European Convention (and the comparable articles of other human rights instruments) lump torture and inhuman or degrading treatment together, drawing no distinction between them. The European Court did, however, draw a distinction between them in Ireland v United Kingdom (1978) 2 EHRR 25, holding that the conduct complained of was inhuman or degrading but fell short of torture, and article 16 of the Torture Convention draws this distinction very expressly:

"Article 16

1.  Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

2.  The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion."

"99  The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. The Court therefore finds elements which are sufficiently serious to render such treatment inhuman and degrading. In any event, the Court reiterates that, in respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3.

100  In other words, it remains to establish in the instant case whether the 'pain or suffering' inflicted on Mr Selmouni can be defined as 'severe' within the meaning of Article 1 of the United Nations Convention. The Court considers that this 'severity' is, like the 'minimum severity' required for the application of Article 3, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.

101  The Court has previously examined cases in which it concluded that there had been treatment which could only be described as torture. However, having regard to the fact that the Convention is a 'living instrument which must be interpreted in the light of present-day conditions', the Court considers that certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies."

It may well be that the conduct complained of in Ireland v United Kingdom, or some of the Category II or III techniques detailed in a J2 memorandum dated 11 October 2002 addressed to the Commander, Joint Task Force 170 at Guantanamo Bay, Cuba, (see The Torture Papers: The Road to Abu Ghraib, ed K Greenberg and J Dratel, (2005), pp 227-228), would now be held to fall within the definition in article 1 of the Torture Convention.

The burden of proof