Noticeboard
| Date | 01 January 2005 |
| DOI | 10.1350/ijep.9.1.55.64788 |
| Published date | 01 January 2005 |
| Subject Matter | Noticeboard |
Notices should be sent to Rosemary Pattenden, School of Law, University of East
Anglia, Norwich NR4 7TJ, UK. E-mail: R.Pattenden@uea.ac.uk
Evidence supplied by a foreign state which may have been obtained under
torture—United Kingdom (England)
Section 21 of the Anti-Terrorism Crime and Security Act 2001, which was passed in
the wake of 9/11, empowers the Home Secretary to issue a certificate permitting the
indefinite detention without charge or trial of a foreign national whom the Home
Secretary on reasonable grounds suspects of being an international terrorist and
believes to be a risk to national security. A detainee has a right of appeal to the
Special Immigration Appeals Commission (SIAC), a body with a status equivalent to
the High Court, which must assess whether reasonable grounds for the belief and
suspicion exist. If SIAC refuses to cancel the Home Secretary’s certificate, there is a
further appeal to the Court of Appeal on a point of law. The appellants in A and Others
v Secretary of State for the Home Department [2004] EWCA Civ 1123 were 10 foreign
nationals (all Arab Muslims suspected of links to Al Qa’eda or Osama bin Laden) who
had appealed unsuccessfully to SIAC. The Court of Appeal unanimously dismissed
their appeals but was split 2:1 on the important issue of the admissibility of evidence
obtained by torturing third parties abroad.
The appellants alleged that some of the evidence on which the Home Secretary
supported the detentions before SIAC (some of which had been withheld from the
appellants’ lawyers on the grounds of national security) may have been extracted by
torturing third parties at the US military bases at Guantanamo Bay, Cuba or Bagram
Airbase in Afghanistan and that it was up to the Home Secretary to disprove this.
Laws LJ held that there was no evidence to support this allegation (ibid. at [239]), but,
nevertheless, as a matter of principle, considered the position if the Home Secretary
had presented SIAC with evidence tainted by torture. He agreed with Pill LJ that if
SIAC cannot consider evidence obtained by torture, the Home Secretary cannot do so
either (ibid. at [125]). Pill LJ said that it was quite unrealistic to expect the Home
Secretary to inquire into the methods used by foreign states to get information and
inconsistent with the Home Secretary’s power to act on suspicion and belief (ibid. at
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[129]; cf. ibid. at [254]). SIAC’s function is one of review (ibid. at [125]). It would be a
distraction for SIAC to investigate the provenance of the Home Secretary’s information
(ibid. at [131]) and contrary to statutory intent (ibid.). The Home Secretary must act in
good faith, but his responsibility for national security and expertise in such matters
has to be recognised when SIAC assesses whether grounds for reasonable suspicion
and belief exist (ibid.). SIAC could not tolerate admission of a statement obtained
through the misuse of executive power (ibid. at [137]), but there was no evidence that
if torture was used, the United Kingdom was implicated (ibid. at [138]; cf. ibid. at
[408]). Laws LJ said that if evidence was obtained by torture abroad, so long as the
United Kingdom had neither ‘procured’ nor ‘connived in’ that torture and had no
control over those responsible, the Home Secretary could rely on the evidence (ibid. at
[252]). The use of torture goes to the weight of the evidence, not to its admissibility (as
SIAC had correctly held ibid. at [78], [240]). Neither Pill nor Laws LJJ saw any
contravention of Article 6(1) of the European Convention on Human Rights.
Neuberger LJ, who dissented on this issue, while agreeing that the Home Secretary
could rely on evidence tainted by torture if there were no United Kingdom complicity
(ibid. at [419], [500]), said that someone mounting an appeal before SIAC under s. 25
of the 2001 Act could not be said to have a fair trial within the meaning of Article
6(1) if evidence obtained by torture from a third party were used against him. SIAC
does not review the Secretary of State’s decision to issue a certificate but carries out
‘its own assessment [of] whether there are, at the date of the hearing of the s. 25
appeal, “reasonable grounds”, based on the evidence before it’ (ibid. at [501]). There is
nothing odd about allowing the Secretary of State to base his decision on some facts
and reasons that could not be considered by SIAC (ibid. at [500]). It happens in cases
in which the executive claims public interest immunity.
Wider issues
The appeal judges’ lengthy judgments contain a wide-ranging discussion of the
implications of evidence having been obtained by torture not only for proceedings
before SIAC but for all judicial proceedings. What do they tell us about:
1.
the consequences for other civil proceedings or a criminal trial of evidence
having been obtained by torture;
2.
if there are any consequences, the burden and standard of proof?
Relevant international conventions and legislation
Article 15 of the United Nations Convention Against Torture (CAT), to which the
United Kingdom is a signatory but which has not been incorporated into domestic
law, requires states to ‘ensure that any statement … 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’.
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NOTICEBOARD
Article 3 (from which no derogation is permissible) of the European Convention of
Human Rights (ECHR) provides that ‘[n]o one shall be subjected to torture or to
inhuman or degrading treatment or punishment’. Article 6(1) says that ‘[i]n the
determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing …’. Both Articles have been
incorporated into domestic law by the Human Rights Act 1998.
Rule 44(3) of the Special Immigration Appeals Commission (Procedure) Rules 2003
disapplies the ordinary rules of evidence in proceedings before SIAC. The Police and
Criminal Evidence Act 1984 (PACE), s. 76 requires the exclusion in criminal proceedings
of a confession which the prosecution cannot prove beyond reasonable doubt was
not obtained by oppression. PACE, s. 78 provides that ‘the court may refuse to allow
evidence on which the prosecution proposes to rely to be given if it appears to the
court that, having regard to all the circumstances, including the circumstances in
which the evidence was obtained, the admission of the evidence would have such an
adverse effect on the fairness of the proceedings that the court ought not to admit
it’.
Admissibility of evidence obtained by torture: what was said and what was omitted
Laws and Neuberger LJJ agree that it is an abuse of process for the State to rely in any
form of judicial process (ibid. at [249], [424]) on the evidence of a third party or a
defendant that has been obtained by torture in which the United Kingdom is
implicated no matter how grave the emergency (ibid. at [250], [252]). Pill LJ’s judgment
points in the same direction (ibid. at [137]). In these circumstances, the court must
either refuse to hear the case, debar a defence or exclude the evidence, as appropriate
(ibid. at [248–249], [398]). The abuse of power jurisdiction is a constitutional
fundamental which cannot be ousted by implication by a provision such as r. 44(3)
which permits evidence to be received ‘that would not be admissible in a court of
law’ (ibid. at [249], [422]). The court was not asked (ibid. at [114]) about whether
derivative evidence, that is, evidence that was discovered solely as a result of
information obtained under torture but which has probative value independently of
the tainted interrogation, attracts the abuse of process jurisdiction. It is one thing to
allow the Executive to use the fruits of a tree which has been poisoned by others (see
below), and quite another to allow the Executive the fruits of a tree which it has
itself poisoned by abusing its executive power. The Article 6(1) fair trial requirement,
however, might not oblige a court to reject derivative evidence obtained under these
circumstances and it is a possible interpretation of Neuberger LJ’s final conclusions
(ibid. at [539]) that he would admit derivative evidence in spite of United Kingdom
involvement in the torture that led to its discovery.
The abuse of process jurisdiction does not arise if the United Kingdom authorities
had nothing to do with the torture (ibid. at [253], [402]). When neither torturer nor
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torture victim are a party to the litigation, the common law (viewed independently of
Article 6) does not compel the exclusion of evidence tainted by torture (ibid. at [253],
[409], [416], [423], [438]). A fortiori it does not require exclusion of derivative evidence
(ibid. at [114], [128], [241], [506]). If the common law falls short of the United Kingdom’s
international obligations under Article 15 of CAT, this is because a court can only try
its best to construe domestic law to be compliant with these obligations—it cannot
incorporate Article 15 (ibid. at [119], [267], [434]. The Court of Appeal declined to
consider a late argument that Article 15, expressed as a principle of customary
international law, is part of the fabric of the common law (ibid. at [80], [274], [437]).
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