|
HOUSE OF
LORDS |
SESSION
2005-06
[2005] UKHL
71
on appeal from:
[2004] EWCA Civ 1123
|
|
OPINIONS
OF
THE LORDS OF APPEAL
for
judgment IN THE CAUSE |
|
A (FC) and
others (FC) (Appellants) v. Secretary of State for
the Home Department (Respondent) (2004)
A and others
(Appellants) (FC) and others v. Secretary of State for
the Home Department (Respondent)
(Conjoined
Appeals) |
|
Appellate
Committee
Lord Bingham of
Cornhill
Lord Nicholls of
Birkenhead
Lord
Hoffmann
Lord Hope of
Craighead
Lord Rodger of
Earlsferry
Lord
Carswell
Lord Brown of
Eaton-under-Heywood |
|
Counsel |
|
Appellants:
Ben
Emmerson QC
Philippe
Sands QC
Raza
Husain
Danny
Friedman
(Instructed by Birnberg Peirce and Partners and
Tyndallwoods, Birmingham) |
Respondents:
Ian
Burnett QC
Philip
Sales
Robin
Tam
Jonathan
Swift
(Instructed by Treasury Solicitor)
|
|
Interveners
Sir Sydney Kentridge QC, Colin Nicholls QC,
Timothy Otty, Sudhanshu Swaroop and Colleen
Hanley
(Instructed by Freshfields Bruckhaus
Deringer) for the Commonwealth Lawyers Association and two other
interveners.
Keir Starmer QC, Nicholas Grief, Mark
Henderson, Joseph Middleton, Peter Morris and Laura Dubinsky
(Instructed by Leigh Day & Co) for
Amnesty International and thirteen other
interveners. |
|
Hearing
dates:
17, 18, 19 and 20 October 2005 |
|
on
Thursday
8 dECEMBER 2005 |
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|
|
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
A (FC) and others (FC) (Appellants) v. Secretary of State
for the Home Department (Respondent) (2004)
A and others (Appellants) (FC) and others v. Secretary of
State for the Home Department (Respondent)
(Conjoined Appeals)
[2005] UKHL 71
LORD BINGHAM OF CORNHILL
My Lords,
- May the Special Immigration
Appeals Commission ("SIAC"), a superior court of record established by
statute, when hearing an appeal under section 25 of the Anti-terrorism,
Crime and Security Act 2001 by a person certified and detained under
sections 21 and 23 of that Act, receive evidence which has or may have
been procured by torture inflicted, in order to obtain evidence, by
officials of a foreign state without the complicity of the British
authorities? That is the central question which the House must answer in
these appeals. The appellants, relying on the common law of England, on
the European Convention on Human Rights and on principles of public
international law, submit that the question must be answered with an
emphatic negative. The Secretary of State agrees that this answer would
be appropriate in any case where the torture had been inflicted by or
with the complicity of the British authorities. He further states that
it is not his intention to rely on, or present to SIAC or to the
Administrative Court in relation to control orders, evidence which he
knows or believes to have been obtained by a third country by torture.
This intention is, however, based on policy and not on any acknowledged
legal obligation. Like any other policy it may be altered, by a
successor in office or if circumstances change. The admission of such
evidence by SIAC is not, he submits, precluded by law. Thus he contends
for an affirmative answer to the central question stated above. The
appellants' case is supported by written and oral submissions made on
behalf of 17 well-known bodies dedicated to the protection of human
rights, the suppression of torture and maintenance of the rule of law.
- The appeals now before the House
are a later stage of the proceedings in which the House gave judgment in
December 2004: A and others v Secretary of State for the Home
Department, X and another v Secretary of State for the Home
Department [2004] UKHL 56, [2005] 2 AC 68. In their opinions given
then, members of the House recited the relevant legislative provisions
and recounted the relevant history of the individual appellants up to
that time. To avoid wearisome repetition, I shall treat that material as
incorporated by reference into this opinion, and make only such specific
reference to it as is necessary for resolving these appeals.
The Anti-terrorism, Crime and Security Act
2001
- The 2001 Act was this country's
legislative response to the grave and inexcusable crimes committed in
New York, Washington DC and Pennsylvania on 11 September 2001, and
manifested the government's determination to protect the public against
the dangers of international terrorism. Part 4 of the Act accordingly
established a new regime, applicable to persons who were not British
citizens, whose presence in the United Kingdom the Secretary of State
reasonably believed to be a risk to national security and whom the
Secretary of State reasonably suspected of being terrorists as defined
in the legislation. By section 21 of the Act he was authorised to issue
a certificate in respect of any such person, and to revoke such a
certificate. Any action of the Secretary of State taken wholly or partly
in reliance on such a certificate might be questioned in legal
proceedings only in a prescribed manner.
- Sections 22 and 23 of the Act
recognised that it might not, for legal or practical reasons, be
possible to deport or remove from the United Kingdom a suspected
international terrorist certified under section 21, and power was given
by section 23 to detain such a person, whether temporarily or
indefinitely. This provision was thought to call for derogation from the
provisions of article 5(1)(f) of the European Convention, which it was
sought to effect by a Derogation Order, the validity of which was one of
the issues in the earlier stages of the proceedings.
- Section 25 of the Act enables a
person certified under section 21 to appeal to SIAC against his
certification. On such an appeal SIAC must cancel the certificate if
"(a) it considers that there are no reasonable grounds for a belief or
suspicion of the kind referred to in section 21(1)(a) or (b), or (b) it
considers that for some other reason the certificate should not have
been issued". If the certificate is cancelled it is to be treated as
never having been issued, but if SIAC determines not to cancel a
certificate it must dismiss the appeal. Section 26 provides that
certifications shall be the subject of periodic review by SIAC.
SIAC
- SIAC was established by the
Special Immigration Appeals Commission Act 1997, which sought to
reconcile the competing demands of procedural fairness and national
security in the case of foreign nationals whom it was proposed to deport
on the grounds of their danger to the public. Thus by section 1 (as
amended by section 35 of the 2001 Act) SIAC was to be a superior court
of record, now (since amendment in 2002) including among its members
persons holding or having held high judicial office, persons who are or
have been appointed as chief adjudicators under the Nationality,
Immigration and Asylum Act 2002, persons who are or have been qualified
to be members of the Immigration Appeal Tribunal and experienced lay
members. All are appointed by the Lord Chancellor, who is authorised by
section 5 of the Act to make rules governing SIAC's procedure. Such
rules, which must be laid before and approved by resolution of each
House of Parliament, have been duly made. Such rules may, by the express
terms of sections 5 and 6, provide for the proceedings to be heard
without the appellant being given full particulars of the reason for the
decision under appeal, for proceedings to be held in the absence of the
appellant and his legal representative, for the appellant to be given a
summary of the evidence taken in his absence and for appointment by the
relevant law officer of a legally qualified special advocate to
represent the interests of an appellant in proceedings before SIAC from
which the appellant and his legal representative are excluded, such
person having no responsibility towards the person whose interests he is
appointed to represent.
- The rules applicable to these
appeals are the Special Immigration Appeals Commission (Procedure) Rules
2003 (SI 2003/1034). Part 3 of the Rules governs appeals under section
25 of the 2001 Act. In response to a notice of appeal, the Secretary of
State, if he intends to oppose the appeal, must file a statement of the
evidence on which he relies, but he may object to this being disclosed
to the appellant or his lawyer (rule 16): if he objects, a special
advocate is appointed, to whom this "closed material" is disclosed (rule
37). SIAC may overrule the Secretary of State's objection and order him
to serve this material on the appellant, but in this event the Secretary
of State may choose not to rely on the material in the proceedings (rule
38). A special advocate may make submissions to SIAC and cross-examine
witnesses when an appellant is excluded and make written submissions
(rule 35), but may not without the directions of SIAC communicate with
an appellant or his lawyer or anyone else once the closed material has
been disclosed to him (rule 36). Rule 44(3) provides that SIAC "may
receive evidence that would not be admissible in a court of law". The
general rule excluding evidence of intercepted communications, now found
in section 17(1) of the Regulation of Investigatory Powers Act 2000, is
expressly disapplied by section 18(1)(e) in proceedings before SIAC.
SIAC must give written reasons for its decision, but insofar as it
cannot do so without disclosing information which it would be contrary
to the public interest to disclose, it must issue a separate decision
which will be served only on the Secretary of State and the special
advocate (rule 47).
The appellants and the proceedings
- Of the 10 appellants now before
the House, all save 2 were certified and detained in December 2001. The
two exceptions are B and H, certified and detained in February and April
2002 respectively. Each of them appealed against his certification under
section 25. Ajouaou and F voluntarily left the United Kingdom, for
Morocco and France respectively, in December 2001 and March 2002, and
their certificates were revoked following their departure. C's
certificate was revoked on 31 January 2005 and D's on 20 September 2004.
Abu Rideh was transferred to Broadmoor Hospital under sections 48 and 49
of the Mental Health Act 1983 in July 2002. Conditions for his release
on bail were set by SIAC on 11 March 2005, and on the following day his
certificate was revoked and a control order (currently the subject of an
application for judicial review) was made under the Prevention of
Terrorism Act 2005, enacted to replace Part 4 of the 2001 Act. Events
followed a similar pattern in the cases of E, A and H, save that none
was transferred to Broadmoor and notice of intention to deport
(currently the subject of challenge) was given to A and H in August
2005, since which date they have been detained. The control orders made
in their cases were discharged. B's case followed a similar course to
A's, save that he was transferred to Broadmoor under sections 48 and 49
of the 1983 Act in September 2005. In the case of G, bail conditions
were set by SIAC in April 2004 and revised on 10 March 2005. His
certificate was revoked and a control order made under the 2005 Act on
12 March 2005. He was given notice of intention to deport (which he is
challenging) on 11 August 2005, and he has since been detained. His
control order was discharged.
- The appellants' appeals to SIAC
under section 25 of the 2001 Act were heard in groups between May and
July 2003. During these hearings argument and evidence were directed
both to general issues relevant to all or most of the appeals and to
specific issues relevant to individual cases. SIAC heard open evidence
when the appellants and their legal representatives were present and
closed evidence when they were excluded but special advocates were
present. On 29 October 2003 judgments were given dismissing all the
appeals. There were open judgments on the general and the specific
issues, and there were also closed judgments. On the question central to
these appeals to the House, raised in its present form when the
proceedings before it were well advanced, SIAC gave an affirmative
answer: the fact that evidence had, or might have been, procured by
torture inflicted by foreign officials without the complicity of the
British authorities was relevant to the weight of the evidence but did
not render it legally inadmissible. In lengthy judgments given on 11
August 2004, a majority of the Court of Appeal (Pill and Laws LJJ,
Neuberger LJ in part dissenting) upheld this decision: [2004] EWCA Civ 1123, [2005] 1 WLR 414. Despite the repeal of Part 4 of the 2001 Act by the 2005
Act, the appellants' right of appeal to the House against the Court of
Appeal's decision under section 7 of the 1997 Act is preserved by
section 16(4) of the Prevention of Terrorism Act 2005, and no question
now arises as to the competency of any of these appeals.
THE COMMON LAW
- The appellants submit that the
common law forbids the admission of evidence obtained by the infliction
of torture, and does so whether the product is a confession by a suspect
or a defendant and irrespective of where, by whom or on whose authority
the torture was inflicted.
- It is, I think, clear that from
its very earliest days the common law of England set its face firmly
against the use of torture. Its rejection of this practice was indeed
hailed as a distinguishing feature of the common law, the subject of
proud claims by English jurists such as Sir John Fortescue (De
Laudibus Legum Angliae, c. 1460-1470, ed S.B. Chrimes, (1942), Chap
22, pp 47-53), Sir Thomas Smith (De Republica Anglorum, ed L
Alston, 1906, book 2, chap 24, pp 104-107), Sir Edward Coke
(Institutes of the Laws of England (1644), Part III, Chap 2, pp
34-36). Sir William Blackstone (Commentaries on the Laws of England,
(1769) vol IV, chap 25, pp 320-321), and Sir James Stephen
(A History of the Criminal Law of England, 1883, vol 1, p
222). That reliance was placed on sources of doubtful validity, such as
chapter 39 of Magna Carta 1215 and Felton's Case as
reported by Rushworth (Rushworth's Collections, vol (i), p 638)
(see D. Jardine, A Reading on the Use of Torture in the Criminal Law
of England Previously to the Commonwealth, 1837, pp 10-12, 60-62)
did not weaken the strength of received opinion. The English rejection
of torture was also the subject of admiring comment by foreign
authorities such as Beccaria (An Essay on Crimes and Punishments,
1764, Chap XVI) and Voltaire (Commentary on Beccaria's Crimes and
Punishments, 1766, Chap XII). This rejection was contrasted with the
practice prevalent in the states of continental Europe who, seeking to
discharge the strict standards of proof required by the Roman-canon
models they had adopted, came routinely to rely on confessions procured
by the infliction of torture: see A L Lowell, "The Judicial Use of
Torture" (1897) 11 Harvard L Rev 220-233, 290-300; J Langbein,
Torture and the Law of Proof: Europe and England in the Ancien
Regime (1977); D. Hope, "Torture" [2004] 53 ICLQ 807 at pp 810-811.
In rejecting the use of torture, whether applied to potential defendants
or potential witnesses, the common law was moved 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.
- Despite this common law
prohibition, it is clear from the historical record that torture was
practised in England in the 16th and early 17th centuries. But this took
place pursuant to warrants issued by the Council or the Crown, largely
(but not exclusively) in relation to alleged offences against the state,
in exercise of the Royal prerogative: see Jardine, op cit.;
Lowell, op cit., pp 290-300). Thus the exercise of this royal
prerogative power came to be an important issue in the struggle between
the Crown and the parliamentary common lawyers which preceded and
culminated in the English civil war. By the common lawyers torture was
regarded as (in Jardine's words: op cit, pp 6 and 12) "totally
repugnant to the fundamental principles of English law" and "repugnant
to reason, justice, and humanity." One of the first acts of the Long
Parliament in 1640 was, accordingly, to abolish the Court of Star
Chamber, where torture evidence had been received, and in that year the
last torture warrant in our history was issued. Half a century later,
Scotland followed the English example, and in 1708, in one of the
earliest enactments of the Westminster Parliament after the Act of Union
in 1707, torture in Scotland was formally prohibited. The history is
well summarised by Sir William Holdsworth (A History of English
Law, vol 5, 3rd ed (1945), pp 194-195, footnotes omitted):
"We have seen that the use of torture, though illegal by the
common law, was justified by virtue of the extraordinary power of the
crown which could, in times of emergency, override the common law. We
shall see that Coke in the earlier part of his career admitted the
existence of this extraordinary power. He therefore saw no objection
to the use of torture thus authorized. But we shall see that his views
as to the existence of this extraordinary power changed, when the
constitutional controversies of the seventeenth century had made it
clear that the existence of any extraordinary power in the crown was
incompatible with the liberty of the subject. It is not surprising
therefore, that, in his later works, he states broadly that all
torture is illegal. It always had been illegal by the common law, and
the authority under which it had been supposed to be legalized he now
denied. When we consider the revolting brutality of the continental
criminal procedure, when we remember that this brutality was sometimes
practised in England by the authority of the extraordinary power of
the crown, we cannot but agree that this single result of the
rejection of any authority other than that of the common law is almost
the most valuable of the many consequences of that rejection. Torture
was not indeed practised so systematically in England as on the
continent; but the fact that it was possible to have recourse to it,
the fact that the most powerful court in the land sanctioned it, was
bound sooner or later to have a demoralising effect upon all those who
had prisoners in their power. Once torture has become acclimatized in
a legal system it spreads like an infectious disease. It saves the
labour of investigation. It hardens and brutalizes those who have
become accustomed to use it."
As Jardine put in (op. cit., p 13):
"As far as authority goes, therefore, the crimes of murder and
robbery are not more distinctly forbidden by our criminal code than
the application of the torture to witnesses or accused persons is
condemned by the oracles of the Common law."
This condemnation is more aptly categorised as a constitutional
principle than as a rule of evidence.
- Since there has been no lawfully
sanctioned torture in England since 1640, and the rule that unsworn
statements made out of court are inadmissible in court was
well-established by at latest the beginning of the 19th century
(Cross & Tapper on Evidence, 10th edn (2004), p 582), there
is an unsurprising paucity of English judicial authority on this
subject. In Pearse v Pearse (1846) 1 De G & Sm 12, 28-29, 63
ER 950, 957, Knight Bruce V-C observed:
"The discovery and vindication and establishment of truth are main
purposes certainly of the existence of Courts of Justice; still, for
the obtaining of these objects, which, however valuable and important,
cannot be usefully pursued without moderation, cannot be either
usefully or creditably pursued unfairly or gained by unfair means, not
every channel is or ought to be open to them. The practical inefficacy
of torture is not, I suppose, the most weighty objection to that mode
of examination . . . Truth, like all other good things, may be loved
unwisely - may be pursued too keenly - may cost too much . . ."
That was not a case involving any allegation of torture. Such an
allegation was however made in R (Saifi) v Governor of Brixton
Prison [2001] 1 WLR 1134 where the applicant for habeas corpus
resisted extradition to India on the ground, among others, that the
prosecution relied on a statement obtained by torture and since
retracted. The Queen's Bench Divisional Court (Rose LJ and Newman J)
accepted the magistrate's judgment that fairness did not call for
exclusion of the statement, but was clear (para 60 of the judgment) that
the common law and domestic statute law (section 78 of the Police and
Criminal Evidence Act 1984) gave effect to the intent of article 15 of
the International Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment 1984 (1990, Cm 1775), "the Torture
Convention", to which more detailed reference is made below.
Involuntary confessions
- The appellants relied, by way of
partial analogy, on the familiar principle that evidence may not be
given by a prosecutor in English criminal proceedings of a confession
made by a defendant, if it is challenged, unless the prosecution proves
beyond reasonable doubt that the confession had not been obtained by
oppression of the person who made it or in consequence of anything said
or done which was likely, in the circumstances existing at the time, to
render unreliable any confession which might be made by him in
consequence thereof. This rule is now found in section 76 of the Police
and Criminal Evidence Act 1984, but enacts a rule established at common
law and expressed in such decisions as Ibrahim v The King [1914]
AC 599, 609-610, R v Harz and Power [1967] AC 760, 817, and
Lam Chi-ming v The Queen [1991] 2 AC 212, 220.
- Plainly this rule provides an
inexact analogy with evidence obtained by torture. It applies only to
confessions by defendants, and it provides for exclusion on grounds very
much wider than torture, or even inhuman or degrading treatment. But it
is in my opinion of significance that the common law (despite
suggestions to that effect by Parke B and Lord Campbell CJ in R v
Baldry (1852) 2 Den 430, 445, 446-447, 169 ER 568, 574, 575, and by
the Privy Council, in judgments delivered by Lord Sumner, in Ibrahim
v The King [1914] AC 599, 610 and Lord Hailsham of St Marylebone in
Director of Public Prosecutions v Ping Lin [1976] AC 574,
599-600) has refused to accept that oppression or inducement should go
to the weight rather than the admissibility of the confession. The
common law has insisted on an exclusionary rule. See, for a clear
affirmation of the rule, Wong Kam-ming v The Queen [1980] AC 247.
- In R v Warickshall (1783)
1 Leach 263, 168 ER 234, this rule was justified on the ground that
involuntary statements are inherently unreliable. That justification is,
however, inconsistent with the principle which the case established,
that while an involuntary statement is inadmissible real evidence which
comes to light as a result of such a statement is not. Two points are
noteworthy. First, there can ordinarily be no surer proof of the
reliability of an involuntary statement than the finding of real
evidence as a direct result of it, as was so in Warickshall's
case itself, but that has never been treated as undermining the
rule. Secondly, there is an obvious anomaly in treating an involuntary
statement as inadmissible while treating as admissible evidence which
would never have come to light but for the involuntary statement. But
this is an anomaly which the English common law has accepted, no doubt
regarding it as a pragmatic compromise between the rejection of the
involuntary statement and the practical desirability of relying on
probative evidence which can be adduced without the need to rely on the
involuntary statement.
- Later decisions make clear that
while the inherent unreliability of involuntary statements is one of the
reasons for holding them to be inadmissible there are other compelling
reasons also. In Lam Chi-ming v The Queen [1991] 2 AC 212, 220,
in a judgment delivered by Lord Griffiths, the Privy Council summarised
the rationale of the exclusionary rule:
"Their Lordships are of the view that the more recent English
cases established that the rejection of an improperly obtained
confession is not dependent only upon possible unreliability but also
upon the principle that a man cannot be compelled to incriminate
himself and upon the importance that attaches in a civilised society
to proper behaviour by the police towards those in their custody."
Lord Griffiths described the inadmissibility of a confession not
proved to be voluntary as perhaps the most fundamental rule of the
English criminal law. The rationale explained by Lord Griffiths was
recently endorsed by the House in R v Mushtaq [2005] UKHL 25, [2005] 1 WLR 1513, paras 1, 7, 27, 45-46, 71. It is of course true, as counsel
for the Secretary of State points out, that in cases such as these the
attention of the court was directed to the behaviour of the police in
the jurisdiction where the defendant was questioned and the trial was
held. This was almost inevitably so. But it is noteworthy that in
jurisdictions where the law is in general harmony with the English
common law reliability has not been treated as the sole test of
admissibility in this context. In Rochin v California 342 US 165
(1952) Frankfurter J, giving the opinion of the United States Supreme
Court, held that a conviction had been obtained by "conduct that shocks
the conscience" (p 172) and referred to a "general principle" that
"States in their prosecutions respect certain decencies of civilized
conduct" (p 173). He had earlier (p 169) referred to authority on the
due process clause of the United States constitution which called for
judgment whether proceedings "offend those canons of decency and
fairness which express the notions of justice of English-speaking
peoples even toward those charged with the most heinous offenses." In
The People (Attorney General) v O'Brien [1965] IR 142, 150, the
Supreme Court of Ireland held, per Kingsmill Moore J, that "to
countenance the use of evidence extracted or discovered by gross
personal violence would, in my opinion, involve the State in moral
defilement." The High Court of Australia, speaking of a discretion to
exclude evidence, observed (per Barwick CJ in R v Ireland (1970)
126 CLR 321, 335), that "Convictions obtained by the aid of unlawful or
unfair acts may be obtained at too high a price." In R v Oickle
[2000] 2 SCR 3, a large majority of the Supreme Court of Canada cited
with approval (para 66) an observation of Lamer J that "What should be
repressed vigorously is conduct on [the authorities'] part that shocks
the community" and considered (para 69) that while the doctrines of
oppression and inducements were primarily concerned with reliability,
the confessions rule also extended to protect a broader concept of
voluntariness that focused on the protection of the accused's rights and
fairness in the criminal process.
Abuse of process
- The appellants submit, in
reliance on common law principles, that the obtaining of evidence by the
infliction of torture is so grave a breach of international law, human
rights and the rule of law that any court degrades itself and the
administration of justice by admitting it. If, therefore, it appears
that a confession or evidence may have been procured by torture, the
court must exercise its discretion to reject such evidence as an abuse
of its process.
- In support of this contention
the appellants rely on four recent English authorities. The first of
these is R v Horseferry Road Magistrates' Court, Ex p Bennett
[1994] 1 AC 42. This case was decided on the factual premise that the
applicant had been abducted from South Africa and brought to this
country in gross breach of his rights and the law of South Africa, at
the behest of the British authorities, to stand trial here, and on the
legal premise that a fair trial could be held. The issue, accordingly,
was whether the unlawful abduction of the applicant was an abuse of the
court's process to which it should respond by staying the prosecution.
The House held, by a majority, that it was. The principle laid down most
clearly appears in the opinion of Lord Griffiths at pp 61-62:
". . . In the present case there is no suggestion that the
appellant cannot have a fair trial, nor could it be suggested that it
would have been unfair to try him if he had been returned to this
country through extradition procedures. If the court is to have the
power to interfere with the prosecution in the present circumstances
it must be because the judiciary accept a responsibility for the
maintenance of the rule of law that embraces a willingness to oversee
executive action and to refuse to countenance behaviour that threatens
either basic human rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this
responsibility in the field of criminal law. . . ."
Counsel for the Secretary of State points out that the members of the
majority attached particular significance to the involvement of the
British authorities in the unlawful conduct complained of, and this is
certainly so: see the opinion of Lord Griffiths at p 62F, Lord Bridge of
Harwich at pp 64G and 67G and Lord Lowry at pp 73G, 76F and 77D. But the
appellants point to the germ of a wider principle. Thus Lord Lowry (p
74G) understood the court's discretion to stay proceedings as an abuse
of process to be exercisable where either a fair trial is impossible or
"it offends the court's sense of justice and propriety to be asked to
try the accused in the circumstances of a particular case." He opined (p
76C):
"that the court, in order to protect its own process from being
degraded and misused, must have the power to stay proceedings which
have come before it and have only been made possible by acts which
offend the court's conscience as being contrary to the rule of law.
Those acts by providing a morally unacceptable foundation for the
exercise of jurisdiction over the suspect taint the proposed trial
and, if tolerated, will mean that the court's process has been
abused."
Lord Lowry's opinion did not earn the concurrence of any other member
of the House, but the appellants contend that this wider principle is
applicable in the extreme case of evidence procured by torture. In
United States v Toscanino 500 F 2d 267 (1974) the US Court of
Appeals reached a decision very similar to Bennett.
- In R v Latif [1996] 1 WLR 104 the executive misconduct complained of was much less gross than in
Bennett, and the outcome was different. Speaking for the House,
Lord Steyn (at pp 112-113) acknowledged a judicial discretion to stay
proceedings as an abuse if they would "amount to an affront to the
public conscience" and where "it would be contrary to the public
interest in the integrity of the criminal justice system that a trial
should take place." In that case the conduct complained of was not so
unworthy or shameful that it was an affront to the public conscience to
allow the prosecution to proceed.
- The premises of the Court of
Appeal's decision in R v Mullen [2000] QB 520 were similar to
those in Bennett, save that a fair trial had already taken place
and Mullen had already been convicted of very serious terrorist
offences, and sentenced to 30 years' imprisonment, before he was alerted
to the misconduct surrounding his abduction from Zimbabwe. Despite the
fairness of the trial, his conviction was quashed. Giving the reserved
judgment of the court, Rose LJ said (at pp 535-536):
"This court recognises the immense degree of public revulsion
which has, quite properly, attached to the activities of those who
have assisted and furthered the violent operations of the I.R.A. and
other terrorist organisations. In the discretionary exercise, great
weight must therefore be attached to the nature of the offence
involved in this case. Against that, however, the conduct of the
security services and police in procuring the unlawful deportation of
the defendant in the manner which has been described represents, in
the view of this court, a blatant and extremely serious failure to
adhere to the rule of law with regard to the production of a defendant
for prosecution in the English courts. The need to discourage such
conduct on the part of those who are responsible for criminal
prosecutions is a matter of public policy to which, as appears from
R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight
must be attached."
- The fourth authority relied on
for its statements of principle was R v Looseley, Attorney General's
Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060, which concerned cases of alleged entrapment. At the outset of
his opinion (para 1) my noble and learned friend Lord Nicholls of
Birkenhead declared that:
"every court has an inherent power and duty to prevent abuse of
its process. This is a fundamental principle of the rule of law. By
recourse to this principle courts ensure that executive agents of the
state do not misuse the coercive, law enforcement functions of the
courts and thereby oppress citizens of the state."
A stay is granted in a case of entrapment not to discipline the
police (para 17) but because it is improper for there to be a
prosecution at all for the relevant offence, having regard to the
state's involvement in the circumstances in which it was committed. To
prosecute in a case where the state has procured the commission of the
crime is (para 19) "unacceptable and improper" and "an affront to the
public conscience." Such a prosecution would not be fair in the broad
sense of the word. My noble and learned friend Lord Hoffmann, having
referred to Canadian authority and to Bennett, accepted Lord
Griffiths' description of the power to stay in the case of behaviour
which threatened basic human rights or the rule of law as (para 40) "a
jurisdiction to prevent abuse of executive power".
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
- If, contrary to their submission
(and to the opinion of the Divisional Court in R (Saifi) v Governor
of Brixton Prison: see para 13 above) the common law and section 78
of the 1984 Act are not, without more, enough to require rejection of
evidence which has or may have been procured by torture, whether or not
with the complicity of the British authorities, the appellants submit
that the European Convention compels that conclusion.
- It is plain that SIAC (and, for
that matter, the Secretary of State) is a public authority within the
meaning of section 6 of the Human Rights Act 1998 and so forbidden to
act incompatibly with a Convention right. One such right, guaranteed by
article 3, is not to be subjected to torture or to inhuman or degrading
treatment. This absolute, non-derogable prohibition has been said
(Soering v United Kingdom (1989) 11 EHRR 439, para 88) to
enshrine "one of the fundamental values of the democratic societies
making up the Council of Europe". The European Court has used such
language on many occasions (Aydin v Turkey (1997) 25 EHRR 251,
para 81).
- Article 6 of the Convention
guarantees the right to a fair trial. Different views have in the past
been expressed on whether, for purposes of article 6, the proceedings
before SIAC are to be regarded as civil or criminal. Rather than pursue
this debate the parties are agreed that the appellants' challenge to
their detention pursuant to the Secretary of State's certification in
any event falls within article 5(4). That provision entitles anyone
deprived of his liberty by arrest or detention to take proceedings by
which the lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful. It is
well-established that such proceedings must satisfy the basic
requirements of a fair trial: Garcia Alva v Germany (2001) 37 EHRR 335; R (West) v Parole Board, R (Smith) v Parole Board
(No 2) [2005] UKHL 1, [2005] 1 WLR 350. Sensibly, therefore, the
parties are agreed that the applicability of article 6 should be left
open and the issue resolved on the premise that article 5(4) applies.
- The Secretary of State submits
that under the Convention the admissibility of evidence is a matter left
to be decided under national law; that under the relevant national law,
namely, the 2001 Act and the Rules, the evidence which the Secretary of
State seeks to adduce is admissible before SIAC; and that accordingly
the admission of this evidence cannot be said to undermine the fairness
of the proceedings. I shall consider the effect of the statutory scheme
in more detail below. The first of these propositions is, however, only
half true. It is correct that the European Court of Human Rights has
consistently declined to articulate evidential rules to be applied in
all member states and has preferred to leave such rules to be governed
by national law: see, for example, Schenk v Switzerland (1988) 13
EHRR 242, para 46; Ferrantelli and Santangelo v Italy (1996) 23
EHRR 288, para 48; Khan v United Kingdom (2000) 31 EHRR 1016,
para 34. It has done so even where, as in Khan, evidence was
acknowledged to have been obtained unlawfully and in breach of another
article of the Convention. But in these cases and others the court has
also insisted on its responsibility to ensure that the proceedings,
viewed overall on the particular facts, have been fair, and it has
recognised that the way in which evidence has been obtained or used may
be such as to render the proceedings unfair. Such was its conclusion in
Saunders v United Kingdom (1996) 23 EHRR 313, a case of
compulsory questioning, and in Teixeira de Castro v Portugal
(1998) 28 EHRR 101, para 39, a case of entrapment. A similar view would
have been taken by the Commission in the much earlier case of Austria
v Italy (1963) 6 YB 740, 784, had it concluded that the victims whom
Austria represented had been subjected to maltreatment with the aim of
extracting confessions. But the Commission observed that article 6(2)
could only be regarded as being violated if the court subsequently
accepted as evidence any admissions extorted in this manner. This was a
point made by my noble and learned friend Lord Hoffmann in the much more
recent devolution case of Montgomery v H M Advocate, Coulter v H M
Advocate [2003] 1 AC 641, 649, when he observed:
"Of course events before the trial may create the conditions for
an unfair determination of the charge. For example, an accused who is
convicted on evidence obtained from him by torture has not had a fair
trial. But the breach of article 6(1) lies not in the use of torture
(which is, separately, a breach of article 3) but in the reception of
the evidence by the court for the purposes of determining the charge.
If the evidence had been rejected, there would still have been a
breach of article 3 but no breach of article 6(1)."
Lord Hoffmann, in R v Governor of Brixton Prison, Ex p Levin
[1997] AC 741, 748, did not exclude the possibility (he did not have to
decide) that evidence might be rejected in extradition proceedings if,
though technically admissible, it had been obtained in a way which
outraged civilised values. Such was said to be the case in R (Ramda)
v Secretary of State for the Home Department [2002] EWHC 1278 (Admin), unreported, 27 June 2002, where the applicant
resisted extradition to France on the ground that the evidence which
would be relied on against him at trial had been obtained by torture and
that he would be unable to resist its admission. The Queen's Bench
Divisional Court concluded (para 22) that if these points were made out,
his trial would not be fair and the Secretary of State would be
effectively bound to refuse to extradite him. In the very recent case of
Mamatkulov and Askarov v Turkey (App Nos 46827/99 and 46951/99,
unreported, 4 February 2005) Judges Bratza, Bonello and Hedigan
delivered a joint partly dissenting opinion, in the course of which they
held in paras 15-17:
"15. As in the case of the risk of treatment proscribed
by Article 3 of the Convention, the risk of a flagrant denial of
justice in the receiving State for the purposes of Article 6 must be
assessed primarily by reference to the facts which were known or
should have been known by the respondent State at the time of the
extradition.
16. The majority of the Court acknowledge that, in the
light of the information available, there 'may have been reasons for
doubting at the time' that the applicants would receive a fair trial
in Uzbekistan (judgment, § 91). However, they conclude that there is
insufficient evidence to show that any possible irregularities in the
trial were liable to constitute a flagrant denial of justice within
the meaning of the Court's Soering judgment.
17. We consider, on the contrary, that on the material
available at the relevant time there were substantial grounds not only
for doubting that the applicants would receive a fair trial but for
concluding that they ran a real risk of suffering a flagrant denial of
justice. The Amnesty International briefing document afforded, in our
view, credible grounds for believing that self-incriminating evidence
extracted by torture was routinely used to secure guilty verdicts and
that suspects were very frequently denied access to a lawyer of their
choice, lawyers often being given access to their client by law
enforcement officials after the suspect had been held in custody for
several days, when the risk of torture was at its greatest. In
addition, it was found that in many cases law enforcement officials
would only grant access to a lawyer after the suspect had signed a
confession and that meetings between lawyers and clients, once
granted, were generally infrequent, defence lawyers rarely being
allowed to be present at all stages of the investigation."
The approach of these judges is consistent with the even more recent
decision of the Court in Harutyunyan v Armenia (App No 36549/03,
unreported, 5 July 2005) where in paras 2(b) and (f) the Court
ruled:
"(b) As to the complaint about the coercion and the
subsequent use in court of the applicant's confession statement, the
Court considers that it cannot, on the basis of the file, determine
the admissibility of this part of the application and that it is
therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules
of the Court, to give notice of this complaint to the respondent
Government.
(f) As to the complaint about the use in court of
witness statements obtained under torture, the Court considers that it
cannot, on the basis of the file, determine the admissibility of this
part of the application and that it is therefore necessary, in
accordance with Rule 54 § 2 (b) of the Rules of the Court, to give
notice of this complaint to the respondent Government."
Had the Court found that the complaints of coercion and torture
appeared to be substantiated, a finding that article 6(1) had been
violated would, in my opinion, have been inevitable. As it was, the
Court did not rule that these complaints were inadmissible. Nor did it
dismiss them. It adjourned examination of the applicant's complaints
concerning the alleged violation of his right to silence and the
admission in court of evidence obtained under torture.
PUBLIC INTERNATIONAL LAW
- The appellants' submission has a
further, more international, dimension. They accept, as they must, that
a treaty, even if ratified by the United Kingdom, has no binding force
in the domestic law of this country unless it is given effect by statute
or expresses principles of customary international law: J H Rayner
(Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC
418; R v Secretary of State for the Home Department, Ex p Brind
[1991] 1 AC 696; R v Lyons [2002] UKHL 44, [2003] 1 AC 976. But they rely on the well-established principle that the words
of a United Kingdom statute, passed after the date of a treaty and
dealing with the same subject matter, are to be construed, if they are
reasonably capable of bearing such a meaning, as intended to carry out
the treaty obligation and not to be inconsistent with it: Garland v
British Rail Engineering Ltd [1983] 2 AC 751, 771. The courts are
obliged under section 2 of the 1998 Act to take Strasbourg jurisprudence
into account in connection with a Convention right, their obligation
under section 3 is to interpret and give effect to primary and
subordinate legislation in a way which is compatible with Convention
rights so far as possible to do so and it is their duty under section 6
not to act incompatibly with a Convention right. If, and to the extent
that, development of the common law is called for, such development
should ordinarily be in harmony with the United Kingdom's international
obligations and not antithetical to them. I do not understand these
principles to be contentious.
- The appellants' argument may, I
think, be fairly summarised as involving the following steps:
(1) The European Convention is not
to be interpreted in a vacuum, but taking account of other international
obligations to which member states are subject, as the European Court
has in practice done.
(2) The prohibition of torture
enjoys the highest normative force recognised by international law.
(3) The international prohibition
of torture requires states not merely to refrain from authorising or
conniving at torture but also to suppress and discourage the practice of
torture and not to condone it.
(4) Article 15 of the Torture
Convention requires the exclusion of statements made as a result of
torture as evidence in any proceedings.
(5) Court decisions in many
countries have given effect directly or indirectly to article 15 of the
Torture Convention.
(6) The rationale of the
exclusionary rule in article 15 is found not only in the general
unreliability of evidence procured by torture but also in its
offensiveness to civilised values and its degrading effect on the
administration of justice.
(7) Measures directed to counter
the grave dangers of international terrorism may not be permitted to
undermine the international prohibition of torture.
It is necessary to examine these propositions in a little detail.
(1) Interpretation of the
Convention in a wider international context.
- Article 31 of the Vienna
Convention on the Law of Treaties, reflecting principles of customary
international law, provides in article 31(3)(c) that in interpreting a
treaty there shall be taken into account, together with the context, any
relevant rules of international law applicable in the relations between
the parties. The European Court has recognised this principle (Golder
v United Kingdom (1975) 1 EHRR 524, para 29, HN v Poland
(Application No 77710/01, 13 September 2005, unreported, para 75)), and
in Al-Adsani v United Kingdom (2001) 34 EHRR 273, para 55, it
said (footnotes omitted):
"55. The Court must next assess whether the restriction
was proportionate to the aim pursued. It recalls that the Convention
has to be interpreted in the light of the rules set out in the Vienna
Convention of 23 May 1969 on the Law of Treaties, and that Article
31(3)(c) of that treaty indicates that account is to be taken of 'any
relevant rules of international law applicable in the relations
between the parties'. The Convention, in including Article 6, cannot
be interpreted in a vacuum. The Court must be mindful of the
Convention's special character as a human rights treaty, and it must
also take the relevant rules of international law into account. The
Convention should so far as possible be interpreted in harmony with
other rules of international law of which it forms part, including
those relating to the grant of State immunity."
The Court has in its decisions invoked a wide range of international
instruments, including the United Nations Convention on the Rights of
the Child 1989 and the Beijing Rules (V v United Kingdom (1999)
30 EHRR 121, paras 76-77), the Council of Europe Standard Minimum Rules
for the Treatment of Prisoners (S v Switzerland (1991) 14 EHRR
670, para 48) and the 1975 Declaration referred to in para 31 below
(Ireland v United Kingdom (1978) 2 EHRR 25, para 167). More
pertinently to these appeals, the Court has repeatedly invoked the
provisions of the Torture Convention: see, for example, Aydin v
Turkey (1997) 25 EHRR 251, para 103; Selmouni v France (1999)
29 EHRR 403, para 97. In Soering v United Kingdom (1989) 11 EHRR 439, para 88, the Court said (footnotes omitted):
"Article 3 makes no provision for exceptions and no derogation
from it is permissible under Article 15 in time of war or other
national emergency. This absolute prohibition on torture and on
inhuman or degrading treatment or punishment under the terms of the
Convention shows that Article 3 enshrines one of the fundamental
values of the democratic societies making up the Council of Europe. It
is also to be found in similar terms in other international
instruments such as the 1966 International Covenant on Civil and
Political Rights and the 1969 American Convention on Human Rights and
is generally recognised as an internationally accepted standard.
The question remains whether the extradition of a fugitive to
another State where he would be subjected or be likely to be subjected
to torture or to inhuman or degrading treatment or punishment would
itself engage the responsibility of a Contracting State under Article
3. That the abhorrence of torture has such implications is recognised
in Article 3 of the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, which
provides that 'no State Party shall . . . extradite a person where
there are substantial grounds for believing that he would be in danger
of being subjected to torture.' The fact that a specialised treaty
should spell out in detail a specific obligation attaching to the
prohibition of torture does not mean that an essentially similar
obligation is not already inherent in the general terms of Article 3
of the European Convention. It would hardly be compatible with the
underlying values of the Convention, that 'common heritage of
political traditions, ideals, freedom and the rule of law' to which
the Preamble refers, were a Contracting State knowingly to surrender a
fugitive to another State where there were substantial grounds for
believing that he would be in danger of being subjected to torture,
however heinous the crime allegedly committed. Extradition in such
circumstances, while not explicitly referred to in the brief and
general wording of Article 3, would plainly be contrary to the spirit
and intendment of the Article, and in the Court's view this inherent
obligation not to extradite also extends to cases in which the
fugitive would be faced in the receiving State by a real risk of
exposure to inhuman or degrading treatment or punishment proscribed by
that Article."
(2) The international prohibition of
torture.
- The preamble to the United
Nations Charter (1945) recorded the determination of member states to
reaffirm their faith in fundamental human rights and the dignity and
worth of the human person and to establish conditions under which
justice and respect for the obligations arising from treaties and other
sources of international law can be maintained. The Charter was
succeeded by the Universal Declaration of Human Rights 1948, the
European Convention 1950 and the International Covenant on Civil and
Political Rights 1966, all of which (in articles 5, 3 and 7
respectively, in very similar language) provided that no one should be
subjected to torture or inhuman or degrading treatment.
- On 9 December 1975 the General
Assembly of the United Nations, without a vote, adopted Resolution 3452
(XXX), a Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. This included (in article 1) a definition of torture as
follows:
1. For the purpose of this Declaration, torture
means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted by or at the instigation of a
public official on a person for such purposes as obtaining from him or
a third person information or confession, punishing him for an act he
has committed or is suspected of having committed, or intimidating him
or other persons. It does not include pain or suffering arising only
from, inherent in or incidental to, lawful sanctions to the extent
consistent with the Standard Minimum Rules for the Treatment of
Prisoners.
2. Torture constitutes an aggravated and deliberate
form of cruel, inhuman or degrading treatment or
punishment."
Articles 2-4 provided as follows:
Any act of torture or other cruel, inhuman or degrading treatment
or punishment is an offence to human dignity and shall be condemned as
a denial of the purposes of the Charter of the United Nations and as a
violation of the human rights and fundamental freedoms proclaimed in
the Universal Declaration of Human Rights.
No State may permit or tolerate torture or other cruel, inhuman or
degrading treatment or punishment. Exceptional circumstances such as a
state of war or a threat of war, internal political instability or any
other public emergency may not be invoked as a justification of
torture or other cruel, inhuman or degrading treatment or punishment.
Each State shall, in accordance with the provisions of this
Declaration, take effective measures to prevent torture and other
cruel, inhuman or degrading treatment or punishment from being
practised within its jurisdiction."
Action was then taken to prepare a convention. This action culminated
in the Torture Convention, which came into force on 26 June 1987. All
member states of the Council of Europe are members with the exception of
Moldova, Andorra and San Marino, the last two of which have been signed
but not yet ratified.
- The Torture Convention
contained, in article 1, a definition of torture:
"Article 1
1. For the purposes of this Convention, 'torture' means
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international
instrument or national legislation which does or may contain provisions
of wider application."
It is noteworthy that the torture must be inflicted by or with the
complicity of an official, must be intentional, and covers treatment
inflicted for the purpose of obtaining information or a confession.
Articles 2, 3 and 4 provide:
1. Each State Party shall take effective legislative,
administrative, judicial or other measures to prevent acts of torture in
any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal political instability or any
other public emergency, may be invoked as a justification of
torture.
3. An order from a superior officer or a public authority
may not be invoked as a justification of torture.
Article 3
1. No State Party shall expel, return ('refouler') or
extradite a person to another State where there are substantial grounds
for believing that he would be in danger of being subjected to
torture.
2. For the purpose of determining whether there are such
grounds, the competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations
of human rights.
Article 4
1. Each State Party shall ensure that all acts of torture
are offences under its criminal law. The same shall apply to an attempt
to commit torture and to an act by any person which constitutes
complicity or participation in torture.
2. Each State Party shall make these offences punishable
by appropriate penalties which take into account their grave
nature."
- It is common ground in these
proceedings that the international prohibition of the use of torture
enjoys the enhanced status of a jus cogens or peremptory norm of
general international law. For purposes of the Vienna Convention, a
peremptory norm of general international law is defined in article 53 to
mean "a norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international
law having the same character". In R v Bow Street Metropolitan
Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147,
197-199, the jus cogens nature of the international crime of
torture, the subject of universal jurisdiction, was recognised. The
implications of this finding were fully and authoritatively explained by
the International Criminal Tribunal for the Former Yugoslavia in
Prosecutor v Furundzija [1998] ICTY 3, 10 December 1998 in a
passage which, despite its length, calls for citation (footnotes
omitted):
"3. Main Features of the Prohibition Against Torture in
International Law.
147. There exists today universal revulsion against
torture: as a USA Court put it in Filartiga v. Peña-Irala, 'the
torturer has become, like the pirate and the slave trader before him,
hostis humani generis, an enemy of all mankind'. This revulsion, as
well as the importance States attach to the eradication of torture,
has led to the cluster of treaty and customary rules on torture
acquiring a particularly high status in the international normative
system, a status similar to that of principles such as those
prohibiting genocide, slavery, racial discrimination, aggression, the
acquisition of territory by force and the forcible suppression of the
right of peoples to self-determination. The prohibition against
torture exhibits three important features, which are probably held in
common with the other general principles protecting fundamental human
rights.
(a) The Prohibition Even Covers Potential Breaches.
148. Firstly, given the importance that the
international community attaches to the protection of individuals from
torture, the prohibition against torture is particularly stringent and
sweeping. States are obliged not only to prohibit and punish torture,
but also to forestall its occurrence: it is insufficient merely to
intervene after the infliction of torture, when the physical or moral
integrity of human beings has already been irremediably harmed.
Consequently, States are bound to put in place all those measures that
may pre-empt the perpetration of torture. As was authoritatively held
by the European Court of Human Rights in Soering, international
law intends to bar not only actual breaches but also potential
breaches of the prohibition against torture (as well as any inhuman
and degrading treatment). It follows that international rules prohibit
not only torture but also (i) the failure to adopt the national
measures necessary for implementing the prohibition and (ii) the
maintenance in force or passage of laws which are contrary to the
prohibition.
149. Let us consider these two aspects separately.
Normally States, when they undertake international obligations through
treaties or customary rules, adopt all the legislative and
administrative measures necessary for implementing such obligations.
However, subject to obvious exceptions, failure to pass the required
implementing legislation has only a potential effect: the wrongful
fact occurs only when administrative or judicial measures are taken
which, being contrary to international rules due to the lack of
implementing legislation, generate State responsibility. By contrast,
in the case of torture, the requirement that States expeditiously
institute national implementing measures is an integral part of the
international obligation to prohibit this practice. Consequently,
States must immediately set in motion all those procedures and
measures that may make it possible, within their municipal legal
system, to forestall any act of torture or expeditiously put an end to
any torture that is occurring.
150. Another facet of the same legal effect must be
emphasised. Normally, the maintenance or passage of national
legislation inconsistent with international rules generates State
responsibility and consequently gives rise to a corresponding claim
for cessation and reparation (lato sensu) only when such legislation
is concretely applied. By contrast, in the case of torture, the mere
fact of keeping in force or passing legislation contrary to the
international prohibition of torture generates international State
responsibility. The value of freedom from torture is so great that it
becomes imperative to preclude any national legislative act
authorising or condoning torture or at any rate capable of bringing
about this effect.
(b) The Prohibition Imposes Obligations Erga Omnes.
151. Furthermore, the prohibition of torture imposes
upon States obligations erga omnes, that is, obligations owed towards
all the other members of the international community, each of which
then has a correlative right. In addition, the violation of such an
obligation simultaneously constitutes a breach of the correlative
right of all members of the international community and gives rise to
a claim for compliance accruing to each and every member, which then
has the right to insist on fulfilment of the obligation or in any case
to call for the breach to be discontinued.
152. Where there exist international bodies charged
with impartially monitoring compliance with treaty provisions on
torture, these bodies enjoy priority over individual States in
establishing whether a certain State has taken all the necessary
measures to prevent and punish torture and, if they have not, in
calling upon that State to fulfil its international obligations. The
existence of such international mechanisms makes it possible for
compliance with international law to be ensured in a neutral and
impartial manner.
(c) The Prohibition Has Acquired the Status of Jus
Cogens.
153. While the erga omnes nature just mentioned
appertains to the area of international enforcement (lato sensu), the
other major feature of the principle proscribing torture relates to
the hierarchy of rules in the international normative order. Because
of the importance of the values it protects, this principle has
evolved into a peremptory norm or jus cogens, that is, a norm that
enjoys a higher rank in the international hierarchy than treaty law
and even 'ordinary' customary rules. The most conspicuous consequence
of this higher rank is that the principle at issue cannot be derogated
from by States through international treaties or local or special
customs or even general customary rules not endowed with the same
normative force.
154. Clearly, the jus cogens nature of the prohibition
against torture articulates the notion that the prohibition has now
become one of the most fundamental standards of the international
community. Furthermore, this prohibition is designed to produce a
deterrent effect, in that it signals to all members of the
international community and the individuals over whom they wield
authority that the prohibition of torture is an absolute value from
which nobody must deviate.
155. The fact that torture is prohibited by a
peremptory norm of international law has other effects at the
inter-state and individual levels. At the inter-state level, it serves
to internationally de-legitimise any legislative, administrative or
judicial act authorising torture. It would be senseless to argue, on
the one hand, that on account of the jus cogens value of the
prohibition against torture, treaties or customary rules providing for
torture would be null and void ab initio, and then be unmindful of a
State say, taking national measures authorising or condoning torture
or absolving its perpetrators through an amnesty law. If such a
situation were to arise, the national measures, violating the general
principle and any relevant treaty provision, would produce the legal
effects discussed above and in addition would not be accorded
international legal recognition. Proceedings could be initiated by
potential victims if they had locus standi before a competent
international or national judicial body with a view to asking it to
hold the national measure to be internationally unlawful; or the
victim could bring a civil suit for damage in a foreign court, which
would therefore be asked inter alia to disregard the legal value of
the national authorising act. What is even more important is that
perpetrators of torture acting upon or benefiting from those national
measures may nevertheless be held criminally responsible for torture,
whether in a foreign State, or in their own State under a subsequent
regime. In short, in spite of possible national authorisation by
legislative or judicial bodies to violate the principle banning
torture, individuals remain bound to comply with that principle. As
the International Military Tribunal at Nuremberg put it: 'individuals
have international duties which transcend the national obligations of
obedience imposed by the individual State'.
156. Furthermore, at the individual level, that is,
that of criminal liability, it would seem that one of the consequences
of the jus cogens character bestowed by the international community
upon the prohibition of torture is that every State is entitled to
investigate, prosecute and punish or extradite individuals accused of
torture, who are present in a territory under its jurisdiction.
Indeed, it would be inconsistent on the one hand to prohibit torture
to such an extent as to restrict the normally unfettered treaty-making
power of sovereign States, and on the other hand bar States from
prosecuting and punishing those torturers who have engaged in this
odious practice abroad. This legal basis for States' universal
jurisdiction over torture bears out and strengthens the legal
foundation for such jurisdiction found by other courts in the
inherently universal character of the crime. It has been held that
international crimes being universally condemned wherever they occur,
every State has the right to prosecute and punish the authors of such
crimes. As stated in general terms by the Supreme Court of Israel in
Eichmann, and echoed by a USA court in Demjanjuk, 'it is
the universal character of the crimes in question ie. international
crimes which vests in every State the authority to try and punish
those who participated in their commission'.
157. It would seem that other consequences include the
fact that torture may not be covered by a statute of limitations, and
must not be excluded from extradition under any political offence
exemption."
There can be few issues on which international legal opinion is more
clear than on the condemnation of torture. Offenders have been
recognised as the "common enemies of mankind" (Demjanjuk v Petrovsky
612 F Supp 544 (1985), 566, Lord Cooke of Thorndon has described the
right not to be subjected to inhuman treatment as a "right inherent in
the concept of civilisation" (Higgs v Minister of National
Security [2000] 2 AC 228, 260), the Ninth Circuit Court of Appeals
has described the right to be free from torture as "fundamental and
universal" (Siderman de Blake v Argentina 965 F 2d 699 (1992),
717) and the UN Special Rapporteur on Torture (Mr Peter Koojimans) has
said that "If ever a phenomenon was outlawed unreservedly and
unequivocally it is torture" (Report of the Special Rapporteur on
Torture, E/CN.4/1986/15, para 3).
(3) The duty of states in relation to torture.
- As appears from the passage just
cited, the jus cogens erga omnes nature of the prohibition
of torture requires member states to do more than eschew the practice of
torture. In Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and
5) [2002] UKHL 19, [2002] 2 AC 883, paras 29, 117, the House refused recognition to conduct which
represented a serious breach of international law. This was, as I
respectfully think, a proper response to the requirements of
international law. In General Comment 20 (1992) on article 7 of the
ICCPR, the UN Human Rights Committee said, in para 8:
"The Committee notes that it is not sufficient for the
implementation of article 7 to prohibit such treatment or punishment
or to make it a crime. States parties should inform the Committee of
the legislative, administrative, judicial and other measures they take
to prevent and punish acts of torture and cruel, inhuman and degrading
treatment in any territory under their jurisdiction."
Article 41 of the International Law Commission's draft articles on
Responsibility of States for internationally wrongful acts (November
2001) requires states to cooperate to bring to an end through lawful
means any serious breach of an obligation under a peremptory norm of
general international law. An advisory opinion of the International
Court of Justice on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory (9 July 2004, General
List No 131), para 159 explained the consequences of the breach found in
that case:
"159. Given the character and the importance of the
rights and obligations involved, the Court is of the view that all
States are under an obligation not to recognize the illegal situation
resulting from the construction of the wall in the Occupied
Palestinian Territory, including in and around East Jerusalem. They
are also under an obligation not to render aid or assistance in
maintaining the situation created by such construction. It is also for
all States, while respecting the United Nations Charter and
international law, to see to it that any impediment, resulting from
the construction of the wall, to the exercise by the Palestinian
people of its right to self-determination is brought to an end. In
addition, all the States parties to the Geneva Convention relative to
the Protection of Civilian Persons in Time of War of 12 August 1949
are under an obligation, while respecting the United Nations Charter
and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that Convention."
There is reason to regard it as a duty of states, save perhaps in
limited and exceptional circumstances, as where immediately necessary to
protect a person from unlawful violence or property from destruction, to
reject the fruits of torture inflicted in breach of international law.
As McNally JA put it in S v Nkomo 1989 (3) ZLR 117, 131:
"It does not seem to me that one can condemn torture while making
use of the mute confession resulting from torture, because the effect
is to encourage torture."
(4) Article 15 of the Torture Convention.
- Article 12 of the 1975
Declaration provided:
"Any statement which is established to have been made as a result
of torture or other cruel, inhuman or degrading treatment or
punishment may not be invoked as evidence against the person concerned
or against any other person in any proceedings."
Article 15 of the Torture Convention repeats the substance of this
provision, subject to a qualification:
"Each State Party shall ensure that any statement which is
established to have been made as a result of torture shall not be
invoked as evidence in any proceedings, except against a person
accused of torture as evidence that the statement was made."
The additional qualification makes plain the blanket nature of this
exclusionary rule. It cannot possibly be read, as counsel for the
Secretary of State submits, as intended to apply only in criminal
proceedings. Nor can it be understood to differentiate between
confessions and accusatory statements, or to apply only where the state
in whose jurisdiction the proceedings are held has inflicted or been
complicit in the torture. It would indeed be remarkable if national
courts, exercising universal jurisdiction, could try a foreign torturer
for acts of torture committed abroad, but could nonetheless receive
evidence obtained by such torture. The matter was succinctly put in the
Report by Mr Alvaro Gil-Robles, the Council of Europe Commissioner for
Human Rights, in his Report on his visit to the United Kingdom in
November 2004 (8 June 2005, Comm DH (2005)6):
"torture is torture whoever does it, judicial proceedings are
judicial proceedings, whatever their purpose — the former can never be
admissible in the latter."
(5) State practice.
- 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.
- 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.
- 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.
- 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
- 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.
- 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",
"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.
- 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.
- 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.
- 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.
- 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.
THE SECRETARY OF STATE'S CASE
- 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.
- 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.
- 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.
- There would b
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