Torture ruling leaves terror policy in chaos
Clare Dyer and Alan Travis, Friday December 9, 2005, http://www.guardian.co.uk/frontpage/story/0,16518,1663307,00.html
The government will have to show that evidence obtained under torture has not been used in up to 30 cases in which foreign terror suspects are held in Britain, following one of the most important judgments to come from the House of Lords.
Seven judges in Britain’s highest court ruled yesterday that intelligence extracted by torture is not admissible in any British court. Lawyers said the judgment would reverberate around the world, putting beyond doubt that the ban on torture was absolute in civilised countries.
Home Office sources confirmed that they now expected « coerced evidence » to be a key issue in the appeals yet to be heard in the cases of 22 men held pending their deportation to countries such as Algeria and Libya, and a further five placed under anti-terror « control orders ».
The seven law lords unanimously overturned an appeal court judgment in August last year, which decided that such evidence could be used if it was obtained abroad from third parties and if Britain had not condoned or connived in the torture. It makes it clear that evidence extracted by torture may be used as evidence only against torturers.
Keir Starmer QC, who led a team representing 14 human rights organisations which presented arguments to the court, hailed it as « the leading judgment in the world on torture ». It would ensure that the fruits of the US policy of « extraordinary rendition » – flying suspects to foreign countries for interrogation – would never be admissible in British courts.
The senior law lord, Lord Bingham, said: « The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted.
« To that question I would give a very clear negative answer. »
The appeal was brought by eight foreign terrorist suspects, mainly Algerian, who were previously detained under anti-terrorism legislation rushed through in the wake of the 9/11 attacks in the US.
Their detention was held unlawful by the law lords a year ago, and most were subsequently put under control orders restricting their movements. Most are now detained awaiting deportation on national security grounds.
They challenged the evidence used against them at the special immigration appeals commission (Siac), arguing that some of it had been extracted under torture from third parties in Algeria and other countries. The appeal court had ruled that the British government need not inquire into whether evidence supplied by foreign countries had been obtained by torture.
The director-general of MI5, Eliza Manningham-Buller, had told the law lords that foreign governments often refused to identify sources of information but that Britain needed to rely on such sources to save lives. The government argued that inquiring too closely might antagonise countries on which Britain relied for intelligence to combat terrorism.
But Lord Bingham said he was « not impressed by the argument based on the practical undesirability of upsetting foreign regimes which may resort to torture ». The law lords sent the cases back to Siac for reconsideration in the light of their judgment.
The home secretary, Charles Clarke, said: « We accept this judgment, which will have no bearing on the government’s efforts to combat terrorism. We have always made clear that we do not intend to rely on or present evidence in Siac which we know or believe to have been obtained by torture. »
But the Liberal Democrat peer Lord Carlile, the independent reviewer of anti-terror laws, predicted the courts would apply the judgment « rigorously » and would re-examine the evidence in a small number of cases.