Judges in row over torture ruling

Courts can hear evidence if abusers are not British : Judges in row over torture ruling

Audrey Gillan, Thursday August 12, 2004, The Guardian

Appe al court judges yesterday defied human rights campaigners by ruling that British courts could use evidence extracted under torture, as long as British agents were not complicit in the abuse.

In a highly controversial judgment, the second highest court in the land rejected the appeals of 10 men suspected of having links to international terrorism and currently held without charge in what activists call "Britain's Guantánamo Bay".

The court of appeal, sitting in London, ruled that the home secretary was right to hold the men in two high- security prisons and a high- security psychiatric hospital, and that the special immigration appeal commission (Siac), which backed the internments, was justified in doing so.

Two of the men have since returned to their countries of origin but are still appealing.

The judgment was immediately condemned as leaving the door open for torture evidence to be used in British courts - and the detainees plan to take their appeal to the House of Lords.

Last night Amnesty International criticised the judges for giving a "green light for torture". It said: " The rule of law and human rights have become casualties of the measures taken in the aftermath of September 11. This judgment is an aberration, morally and legally."

The decision comes just a week after three British men formerly held in Guantánamo Bay
described how after ill treatment they had confessed to meeting up with Osama bin Laden when in fact all three had alibis, confirmed by British security services, that they were in the UK at the time.

Ellie Smith, a human rights lawyer at the Medical Foundation for the Care of Victims of Torture, said: "It is really dangerous and very worrying that any court is willing to use any evidence that has been obtained through use of torture or ill treatment."

The decision to allow evidence from foreign torture was tantamount to contracting out the torture. " We have seen recent instances where the US forces have sent people to other countries for the purpose of extracting evidence," she added.

The men - all of them foreign nationals and Muslim - are detained indefinitely under the
Anti-Terrorism Crime and Security Act 2001 and do not know most of the evidence against them because it is kept secret in the interests of national security.

In their appeals, they argued that to use evidence obtained by torture was "morally repugnant", adding that evidence may have been extracted from men detained in both Guantánamo Bay and Bagram airbase in Afghanistan.

Yesterday, one of the judges, Lord Justice Laws, ruled that there was no evidence to suggest the secretary of state had relied on material derived from torture or any other violation of the European convention on human rights. To suggest that it had been was "purely hypothetical". He and Lord Justice Pill said that torture evidence could be used in a British court so long as the state had not itself "procured" it or "connived" at it.

The position facing the secretary of state on the use of such evidence was "extremely problematic". The law could not expect the secretary of state to inquire into the methods of how information was obtained.

Mr Justice Laws said: "He [the home secretary] may be presented with information of great
potential importance, where there is, let us say, a suspicion as to the means by which, in another jurisdiction, it has been obtained? What is he to do?"

The judges unanimously dismissed the appeal but Lord Justice Neuberger dissented on the torture issue. He said he did not consider that a person would have a fair trial if evidence obtained through maltreatment was to be used, particularly since the person giving the statement would not be available for cross-examination.

The majority decision was welcomed by the home secretary, David Blunkett. He said: "There has been a great deal of speculation about the cases put before Siac and whether they relied upon torture. Let me make it clear, we unreservedly condemn the use of torture and have worked hard with our international partners to eradicate this practice. However, it would be irresponsible not to take appropriate account of any information that could help protect national security and public safety."

Gareth Peirce, solicitor for eight of the men, said: "This is a terrifying judgment. It shows we have completely lost our way in this country, morally and legally."

Britain is a signatory to the European convention on human rights which enshrines a series of
fundamental rights, including "freedom from torture, inhuman and degrading treatment".

Facilitating torture elsewhere is also illegal under the convention against torture to which the UK is committed.

The lawyer for two other men, Natalia Garcia, said that human rights had become "a casualty of the so-called war on terror". She added: "We have sunk to an all-time low where a court can even contemplate that evidence obtained under torture could be admissible and where there is no attempt to provide any effective remedy against abuse of power.

"This is injustice heaped upon injustice and we shall appeal to the House of Lords."