Friday, December 09, 2005

The Lords say "no" to torture

The House of Lords, Britain's highest court, has ruled unanimously that British courts cannot use evidence which might have been extracted by torture in terrorism cases. Instead, evidence from overseas intelligence agencies must be excluded if it is believed (on the balance of probabilities) to be the fruit of torture or cruel or inhumane treatment. It's a tremendous victory for human rights and the rule of law, and a slap in the face to the Blair government - and to the Americans. The chief source of such "evidence" (or at least the chief source in the proceedings at issue) is Guantanamo; what the UK courts are effectively saying is that material provided by the Americans may not be trustworthy.

I've skimmed the judgement [PDF], and its remarkable for the vehemence with which the judges denounce torture. Lord Bingham of Cornhill, who delivered the core opinion, begins with the history of British common law's rejection of torture as "repugnant to reason, justice, and humanity", motivated by

the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice.

He goes on to state that the issue is "one of constitutional principle" rather than the laws of evidence, and that

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.

His conclusion is that the common law

[compels] 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.

The other Law Lords make similarly strong statements. Lord Nicholls of Birkenhead begins with a clear statement that

Torture is not acceptable. This is a bedrock moral principle in this country.

Lord Hoffman:

The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.

Lord Carswell:

the duty not to countenance the use of torture by admission of evidence so obtained in judicial proceedings must be regarded as paramount and that to allow its admission would shock the conscience, abuse or degrade the proceedings and involve the state in moral defilement

Lord Brown:

Torture is an unqualified evil. It can never be justified. Rather it must always be punished.

If only we saw such statements from the UK's elected politicians, rather than merely the rump of its aristocracy. Unfortunately, Blair seems willing to countenance any abuse of human rights in the name of "security". It will be interesting to see whether he is brazen enough to amend the law to explicitly allow evidence from torture, or whether he will accept that his government is subject to the rule of law.


In the eyes if a CIA memeber that probably isn't a no to torture" it just states that you cant procecute the person baised on torture - but to tourture some person so that you can convict him is back to front anyway.
If you were a CIA member and you felt you had to torture in a terrorism case - you probably want to know who has the bomb or who is the mastermind or whatever (somthing you cant find out in other ways). That information may not be useable in court but if it is true you should be able to go out and verify it using other sources anyway.

In the end it may be impossible to have a system that does not leave secret service people considering that torture is justified or even in a sense heroic.

Posted by Genius : 12/09/2005 06:26:00 AM

Yes, this is about the use of evidence derived from torture in court; if intelligence services torture, it rules out prosecution (something the CIA well knows).

As for the CIA themselves, what should be stopping them from torturing people is the fact that it is illegal under US law, and they face twenty years in prison for doing so. And while they may feel secure that the Bush Administration would never prosecute, governments change, and there's no statute of limitations for this offence.

Posted by Idiot/Savant : 12/09/2005 08:30:00 AM

"rump of its aristocracy" - fortunately the creation of the UK's supreme court outside of the House of Lords should mean that the most senior judges will not have to be made Lords in order to be members of the court. I'm sure they'll still be 'ennobled' anyway, just for the status of it.

Blair: don't get me started. The lanugage would not be family-friendly.

Otherwise: excellent post. Thanks for summarising the judgement for us. Good news.

Posted by Andrew : 12/09/2005 10:06:00 AM

Like "me" said, the judges just get the title of Lord ex-officio, they don't inherit it or anything. I believe they can technically sit and vote in the House of Lords, but choose not to (in order to separate legislature and judiciary).

British judges are appointed in much the same way as NZ ones - they start out as barristers and are then appointed as judges on merit and promoted on merit until they reach the top tier. There is a great deal of contention on the detail of what "on merit" means, but I don't think you can argue that the Law Lords are anything other than the best legal brains available.

Posted by Rich : 12/09/2005 11:37:00 AM