Admissibility in Criminal Proceedings of Third Party and Real Evidence Obtained by Methods Prohibited by UNCAT
| Author | Rosemary Pattenden |
| Published date | 01 February 2006 |
| Date | 01 February 2006 |
| DOI | http://doi.org/10.1350/ijep.2006.10.1.1 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 1
ADMISSIBILITY OF EVIDENCE OBTAINED BY TORTURE OF A THIRD PARTY
(2006) 10 E&P 1–41
Admissibility in criminal
proceedings of third
party and real evidence
obtained by methods
prohibited by UNCAT
By Rosemary Pattenden*
Professor of Law, Norwich Law School
Abstract This article is about the admissibility in criminal proceedings of
evidence which is directly or indirectly the product of torture or ill-treatment
of a third party who is not available to give oral evidence. The focus is the
consistency between public international law, particularly the little-studied
Article 15 of the United Nations Convention Against Torture and other Cruel,
Inhuman and Degrading Treatment and Punishment (UNCAT), and English
domestic law in the immediate aftermath of the Court of Appeal’s decision in A
v Secretary of State for the Home Department (No. 2).
Introduction
Freedom from torture is a fundamental human right that must be protected
under all circumstances.
Kofi Annan1
Torture and third party sourced evidence
* Email: R.Pattenden@uea.ac.uk.
I am grateful to Alfred Sawires, Judith Zehetner and Manuel Lambert for their help with,
respectively, German, Austrian and Belgian law and Claudina Richards for locating and
translating French cases.
1 Press Release, UN Secretary-General, June 25 2001 available at www.un.org/News/Press/docs/
2001/sgsm7855.doc.htm, accessed 10 November 2005.
The admissibility for or against the defence of evidence obtained by torture
or near-torture (‘torture lite’) is not one of idle speculation. Despite being
forbidden in many international law instruments, torture is a worldwide
2E & P
ADMISSIBILITY OF EVIDENCE OBTAINED BY TORTURE OF A THIRD PARTY
problem.2 In 2003 Amnesty International documented cases of torture and ill-
treatment in 132 countries.3 It is to be expected that sooner or later a litigant will
object in English criminal proceedings that third party or real evidence from abroad
should be rejected because of the use of torture.4 Such an assertion has been made
already before the Special Immigration Appeal Tribunal (SIAC), a body with a status
equivalent to the High Court, 5 by detainees appealing their indefinite detention
without charge or trial under s. 21 of the Anti-Terrorism Crime and Security Act
2001.6 Their lawyers argued before the Court of Appeal and, subsequently, before the
House of Lords7 that information on which the Home Secretary relied to order their
detention may8 have included statements incriminating their clients that were made
by a third party or parties while being tortured or ill-treated by agents of the United
States. There is quite sufficient information in the public domain to raise concerns
about the ‘stress and duress’ interrogation methods the United States uses on
suspected terrorists in US detention.9 The United States is also accused of outsourcing
interrogation by extraordinary rendition10 to countries that are known to use
torture.11
2 Amnesty International, Taking a Step to Stamp out Torture (London, 2000); C. Grosso,
‘International Law in the Domestic Arena: The Case of Torture in Israel’ (2000) 86 Iowa LR
305, 308; O. Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale LJ
1935, 1978. The article does not pursue the issues that arise when a statement by the defendant
was obtained by torture or ill-treatment abroad.
3 E/CN.4/2005/SR.30 (8 April 2005) para. 101.
4 This might have happened at the trial of Kamel Bourgass, the ricin plotter, had the prosecution
adduced information supplied to the UK authorities by Algerian authorities. The source of
the information, Mohammed Merguerba, alleges that he was tortured by the Algerian
intelligence service before admitting his role in the conspiracy: ‘I was tortured, says ricin plot’,
The Times (9 May 2005), ‘The ricin trial disaster’, Sunday Telegraph (17 April 2005). Apparently, the
UK authorities deliberately asked no questions about how the evidence was obtained: Joint Select
Committee on Human Rights (henceforth JSCHR), HC 561-ii, 31 October 2005, Qs 146, 147, 149.
5 SIAC’s function and powers are very different from that of a criminal court and it does not
apply ordinary rules of evidence: Special Immigration Appeals Commission (Procedure) Rules
2003 (SI 2003 No. 1034), r. 44(3).
6A v Secretary of State (No. 2) [2004] EWCA Civ 1123, [2005] 1 WLR 414.
7 17–19 October 2005. At the time of writing, no judgment is available.
8 For national security reasons, much of the information on which the Home Secretary relied
was not disclosed to the applicants or their lawyers. It is possible that if any of the information
was obtained by torture, it exonerated the detainees as in the al-Motassadeq case (see p. 28 below).
9 Amnesty, USA: Human Dignity Denied: Torture and Accountability in the ‘war on terror’ (October
2004), available http://t2web.amnesty.r3h.net/library/Index/ENGAMR511452004, accessed 10
November 2005. See also, J. Addicott, Terrorism Law, 2nd edn (Lawyers and Judges Publishing
Co.: Tucson, 2004) 177, 196 et seq.; D. Cassel, ‘International Human Rights and the United
States Response to 11 September’ in C. Fijnaut, J. Wouters and F. Neart (eds.), Legal Instruments
in the Fight Against Terrorism: A Transatlantic Dialogue (Martinus Nijhoff: Leiden, 2004) 280.
10 Rendition is the surrender of a fugitive from one state to another.
11 Committee on International Human Rights of the Association of the Bar of the City of New
York, Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions’
(New York, 2004) 38, available at www.abcny.org/pdf/report/Torture%20by%20Proxy%20-
%20Final%20(PDF).pdf, accessed 10 November 2005; M. Hirsh, M. Hosenball and J. Barry,
‘Aboard Air CIA’, Newsweek, 28 February 2005; Amnesty, United States of America—Guantanamo
and beyond: the continuing pursuit of unchecked executive power, AMR 51/063/2005.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 3
ADMISSIBILITY OF EVIDENCE OBTAINED BY TORTURE OF A THIRD PARTY
The possibility that evidence has been obtained by means of torture or lesser forms of
inhuman treatment is not confined to terrorism cases. A big increase in ordinary
international crime, especially drug smuggling, money laundering, counterfeiting
and people trafficking, has made mutual assistance between states unavoidable.
Sometimes evidence must be solicited from counties that are more lenient about
the use of torture or which are unable to control over-zealous officials. Recounting
his experiences as President of the Council of Europe’s Committee for the Prevention
of Torture, Antonio Cassese said that ‘[i]n some countries there is a tradition of
physical violence ingrained in society; hence the serious ill-treatment of persons
suspected of crime is not seen as the aberrant and abnormal behaviour of a few but
as the—somewhat excessive—expression of a widespread mode of “interpersonal
relations”’.12 The United Kingdom is not able to impose standards on foreign police
forces and so may find its ability to fight international crime hampered if British
courts are denied evidence obtained abroad by methods that would not be accepted
in this country but which are not unusual in the source country.
The admissibility of third party statements
Until relatively recently, judges in English criminal proceedings had no need to
concern themselves with the way third party statements were obtained. The hearsay
rule which emerged during the 17th century saw to that.13 If torture was discussed at
all in an evidence context, it was in connection with an exception to that rule: the
defendant’s confession. Initially, torture was no barrier to the admissibility of a
confession.14 Recognising that induced confessions may be unreliable15 and
disapproving of forced self-incrimination, the judiciary in the late 18th century
invented a common law exclusionary rule that prevented the Crown from relying on
the defendant’s involuntary confession to a person in authority.16 This rule has been
transformed by legislation into one prohibiting testimonial use by the prosecution
(and now also a co-defendant) of a confession or admission (regardless of its reliability17
and whether or not it was made to a person in authority18), if it was the result of
12 A. Cassese, Inhuman States (Polity Press: Cambridge, 1996) 67. Lord Hope, ‘Torture’ (2005) 53
ICLQ 807, 808 also describes torture as ‘a fact of life’ in some foreign parts.
13 A v Secretary of State (No. 2) [2004] EWCA Civ 1123, [2005] 1 WLR 414 at [382], [392]. For a full
discussion of the definition of hearsay and its exceptions see my chapters 28 and 30 in H.
Malek (ed.), Phipson on Evidence, 16th edn (Sweet & Maxwell: London, 2005).
14 J. Langbein, Torture and the Law of Proof (Chicago UP: Chicago, 1977) 80. In practice, torture
was rare.
15 ‘[A] confession forced from the mind by the flattery of hope, or the torture of fear, comes in
so questionable a shape … that no credit ought to be given to it; and therefore it is rejected’:
R v Warickshall (1783) 1 Leach 263, 168 ER 234, 235, KB.
16 J. Langbein, The Origins of Adversary Criminal Trial (OUP: Oxford, 2003) 222.
17 cp. Wong-Kam-Ming v R [1980] 1 AC 247, 256, PC.
18 PACE, s. 82(1).
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