The decision by the House of Lords that evidence obtained by torture is inadmissible in British courts has reverberated around the world, argues Roger Smith

On an icy January evening two years ago, Lord Hope of Craighead delivered a lecture on ‘torture’. It was in two parts: a learned and historical disquisition on the judicial use of torture in England and Scotland, and an overview of the emergence of torture as an issue in international law.


Torture seemed a world away from the plush Docklands headquarters of Clifford Chance in which he spoke. No one would have predicted that, two years later, Lord Hope would repackage his research in a judgment in the House of Lords – or, indeed, that UK complicity in torture would be such a politically topical issue.


Lord Hope was one of seven Law Lords who agreed that evidence obtained by torture, albeit not with the consent or collusion of the government, was inadmissible in UK courts. The implicit issue was the reliability of evidence provided by the authorities of the US and some of its shadier allies.


The decision may have had wider repercussions around the world. Within days, President Bush had reluctantly conceded a prohibition against torture and ill-treatment by US employees around the world in the face of a sustained attack by a Republican senator, who had once recited a list of names from the Green Bay Packers American football team to the Vietnamese officials who tortured him.


The Council of Europe is investigating allegations of the transport of prisoners by the CIA and the presence of torture camps in Poland and Romania. A Swiss senator, Dick Marty, chairman of the council’s parliamentary assembly committee on legal affairs and human rights, deemed these ‘credible’. The EU is assisting the council and Poland could theoretically be punished for over-zealous loyalty to the US by loss of its EU voting rights.


The Law Lords judgment also stepped up pressure on the UK government. Foreign Secretary Jack Straw was forced into giving uneasy interviews in which he explained that no written evidence of UK complicity in rendition for torture existed, other than two or three cases in the late 1990s. His performance was so shaky that it seemed just about as crafty – and convincing – as Bill Clinton’s celebrated assertion that he ‘did not have sexual relations with that woman’.


Mr Straw notably left to the hapless Home Office minister for policing, security and community safety, Hazel Blears, the contemporaneous defence of an equally difficult position – the policy with which the government persists of seeking agreements against torture from various governments condemned by Mr Straw’s own department for endemic use of it. Such contracts would be to the effect that, without prejudice to their general conduct, they would not abuse returnees from the UK. Home Secretary Charles Clarke, a wily survivor of politics at the top, contented himself by arguing that the ‘clarification’ of the House of Lords’ judgment was what the government wanted.


The unanimity of the Law Lords was remarkable. They overturned a majority verdict of the Court of Appeal in which all three judges had agreed that, traditionally, the common law allowed all evidence to be presented in a civil case. Lord Justice Laws had added that evidence obtained by torture might be admissible but he would not give it much credibility. Mr Justice Neuberger went further and said, effectively, that hallowed domestic tradition should adopt modern European and global standards against torture. But he was in the minority.


The Law Lords were made of sterner stuff. Not even Lord Rodger – the one dissenter in the Belmarsh judgment against detention without trial – blinked, although he found the ‘issue far from easy’. No one else had much difficulty, and Lord Bingham’s lead judgment is magisterial. It cites domestic jurisprudence, international obligations, judgments of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Court, and decisions of a wide range of courts. These include courts in Canada, France, Germany and even, without apparent irony, the US, where it has been held ‘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’.#


The judges divided only on the burden of proof. The majority accepted that this lay, on the balance of probabilities, with the person alleging that the secretary of state was advancing information obtained by torture.


The good Lord Bingham was in a minority of three to four, but was not inclined to lie down. He argued that this ‘conventional approach’ was not appropriate in a case where hearings occurred, as they did for the litigants, in secret, with special advocates and without disclosure of the full case against those whom the secretary of state wished to deport. He expressed his ‘regret that the House should lend its authority to a test which will undermine the practical efficacy of the torture convention’.


The home secretary’s public reaction was a good sign. The British public have no interest in complicity with torture. It is morally repugnant, contrary to human rights, and counter-productive in any conflict where victory depends on the swaying of hearts and minds.


Oddly enough, Lord Hope and his colleagues may have done more for British long-term interests than any equivocation by UK institutions with obnoxious practices that even a reluctant Bush administration has been forced to disown.


Roger Smith is director of the human rights campaigning group Justice