Has the court of appeal dealt a blow to efforts to protect individuals from torture? Roger smith calls for more scrutiny of evidence gained in these circumstances


It gives something of a shock to read judges of the Court of Appeal debating whether evidence obtained by torture is admissible in the English courts. Yet, this is the subject of at least part of the latest case involving detainees designated by the home secretary as ‘international terrorists’ (A and others v the Home Secretary ([2004] EWCA 1123).



The judgments have not gone unnoticed abroad. The International Commission of Jurists, of which Justice is the British section, commented sadly: ‘Global efforts to protect individuals from torture were dealt a blow this week by the UK Court of Appeal’.


Lord Hope, in hindsight with some percipience, chose torture as the subject of a lecture given at global law firm Clifford Chance in January. He highlighted some predictably gruesome early practices, from the Scottish ‘boot’ (don’t ask) to the unsavoury way in which Thomas Cromwell obtained a confession of adultery from Anne Boleyn. From there, we marched through the Treason Act 1709, which forbade the torture of any person accused of a crime, the UN Convention against Torture of 1984 to the criminalisation of the commission of torture by the Criminal Justice Act 1988.


Lord Hope’s implied conclusion was that we might have reached the end of torture as a judicial concern. Yet, torture was at the core of the Court of Appeal case. First, in framing the Anti-terrorism, Crime and Security Act (ATCSA) 2001, the government wished to give effect to the prohibitions in the European Conventions on Human Rights and the UN Convention on Refugees. The government probably took the view that it had little option but to recognise a right of non-refoulement (deporting a foreign citizen back home). This was affirmed by the European Court of Human Rights in Chahal (23 EHRR 473 (1997)). Chahal was a case in which Justice intervened and where the European Court of Human Rights affirmed that a deportation of someone to a country where he was likely to be subject to torture or ill-treatment constituted a breach of article 3 of the European Convention. Thus, Mr Chahal, a Sikh militant, was spared deportation to a hostile India.


ATCSA allows the indefinite detention of those in circumstances analogous to those alleged against Mr Chahal. The home secretary specifically cited the 'international fight against terrorism' as a justification for Mr Chahal's deportation. However, Mr Chahal successfully claimed that he would be subject to torture and persecution if returned to India. Thus, the ten respondents before the Court of Appeal – six Algerians and one each from Egypt, Tunisia, Jordan and Morocco – all raised the same fear but also argued that the indefinite imprisonment in the UK now permitted by ATCSA in such circumstances was inappropriate.


Material to the present case was why the home secretary believed that the ten were international terrorists.


The issue arose, albeit without any specific supporting facts, as to the consequences if the evidence was derived from torture or ill-treatment. After all, the most likely source of information on the detainees was either the intelligence agencies of their home countries or the US. Mention of the latter in this context is a deep source of shame for a country with so strong a historic commitment to due process. Alas, it is the unavoidable consequence of interrogation techniques proved in the Abu Ghraib gaol and alleged elsewhere.


Lords Justices Pill and Laws approached the problem from a classic common law lawyer’s position. In principle, all evidence is allowed except that which is prohibited – as is the case only in criminal matters.


The UK’s signature and ratification of the UN Convention against Torture as an international instrument does not lead to its incorporation in UK law. The UK should not commit, or connive at, torture. Otherwise, allegations of torture go only to the weight to be accorded evidence, not its admissibility.


Lord Justice Neuberger accepted all this but went beyond it to argue that, nevertheless, admissibility of evidence given under torture vitiated the right of a fair hearing under article 6 of the European Convention. He acknowledged that his reasoning led to the conclusion that European law found torture more repugnant the English common law. But he commented, somewhat drily, that this might be accounted for by the fact that ‘the common law lays somewhat more emphasis on pragmatism whereas the approach under the European Court of Human Rights is perhaps rather more influenced by moral principle’.


The case will undoubtedly go to the Law Lords and probably to Strasbourg. The minority opinion must be right. In the aftermath of the Second World War, Europe and the US remembered enough about the use of torture to recognise the threat to the rule of law that it represents.


There should surely be a rule that evidence obtained by this gruesome means must be excluded in all hearings before the courts &150; be they civil or criminal.


What is more, the home secretary should be under a duty to satisfy himself that this is the case. UK jurisprudence might well benefit from more exposure to more international examination and discussion.



Roger Smith is the director of the law reform and human rights organisation, Justice