John Greenwell on SIAC Torture Cases

Comments on UK Court of Appeal judgements on SIAC torture case [UK Court of Appeal, 11 August 2004]

John Greenwell is a former legal adviser to the Australian government, specialising in international law.  He is now retired.

My approach to the question before the Court of Appeal differs from that taken in the judgements of the Court of Appeal.

1.  In summary my approach is:

(a) the issue is not one of the applicability or otherwise of the rules of evidence;

(b) The issue is whether the Secretary of State would be exercising his certificate issuing ‘power’ lawfully if he were to rely upon information obtained by extraterritorial torture to satisfy himself of reasonable belief or suspicion etc;

(c) It is an unlawful exercise of that power to rely upon that information because to do so would (depending upon the circumstances of the torture) involve the United Kingdom in condoning crimes against humanity, would inhibit enforcement of the Criminal Justice Act and could prevent compliance with the nation’s international obligations under the Torture Convention.

2. As to (a): The Secretary of State, in forming a reasonable suspicion or reasonable belief, is not acting as a Court. He is not receiving evidence.  He receives information.  Reasonable suspicion may be formed on information that does not conform to the rules as to admissibility.  Hearsay is but one example.  The rule as to similar acts is another.  Both are appropriate for criminal proceedings concerned with a finding of guilt, but not in the formation of a reasonable suspicion of the risk of prospective conduct.  It has never been suggested that police officers or other officials who have been vested with similar powers should be restricted by the rules of admissibility.  The contrary position would not seem to me to accord with common sense. The fixation on rules of evidence  by the Court of Appeal and in the argument before it seems to have arisen, at least in part, from the fact that SIAC as a superior court of record can only operate through evidence placed before it.  But SIAC is reviewing the Secretary of State’s grounds for issuing the certificate.  Because of that, rule 44 excludes the rules of admissibility, thereby ensuring that what comes before it is information upon which the Secretary of State acted or upon which he should have acted.

As to (b): The question is one of ‘power’.  The Secretary of State, under section 21, ‘may’ issue a certificate if the specified conditions are satisfied.  He is not of course under a duty to do so.  And it is trite that a power is not absolute exercising a power for a purpose foreign to the object of the power is but one example of an exception.  That the way by which the power is exercised is an additional question to those concerning formation of a reasonable belief or suspicion, etc, is indicated by section 25 (2) (b) of the Anti-terrorism, Crime and Security Act 2001, which enables SIAC to overrule a certificate “if it considers for some other reason the certificate should not have been issued”.

As to (c): On the hypothesis we are considering, my view is that the exercise of the power would be unlawful not because the Secretary of State relied upon information in breach of the rules of admissibility of evidence but because the information was procured by torture.

3. Considerations why the Secretary of States certificate-issuing power is qualified:

(i) Torture as a Crime against Humanity:

Lord Browne Wilkinson’s remarks in Pinochet are apposite:

Ever since 1945, torture on a large scale has featured as one of the crimes against humanity …[which] has the character of jus cogens [which] justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state because the offenders are the ‘common enemies of mankind and all nations have an equal interest in their apprehension and prosecution .. what was needed therefore was an international system which could punish those who were guilty of torture and which did not permit the evasion of punishment by the torturer  moving from one state to another. The Torture Convention was agreed not in order to create an international crime which had not previously existed but to provide an international system, under which the international criminal — the torturer — would find no haven.”

It follows that recognition by the United Kingdom of torture as a crime against humanity does not depend upon the CAT or any other treaty being given effect domestically by legislation. As a crime against humanity it antedates the convention and is independent of it.  It also means that recognition by the United Kingdom of this does not depend upon where the torture took place or that it was instituted by a foreign national or a foreign state.  As [the torturer is] an enemy of mankind “all nations have an equal interest in (the torturer’s) apprehension and prosecution”.

(ii) The Convention against Torture:

The Convention against Torture constitutes international obligations binding upon the United Kingdom.  It requires member states, inter alia, to prosecute extraterritorial torture, to extradite where they cannot prosecute and “to afford the greatest measure of assistance in respect of proceedings in other countries” (Art 9).  In addition Article 15 prohibits evidence obtained by torture being invoked in any proceedings.  Its object is to close off any advantage which the torturer or his state might obtain from the use of the forbidden practice.  Article 15 has not been embodied in United Kingdom legislation and thus cannot create enforceable rights and obligations under domestic law.  That does not detract from the fact that as an international obligation accepted by the United Kingdom the executive, in the exercise of its statutory functions, should as a matter of law have regard to the undertaking it has itself entered into and recognize that to rely upon information obtained by torture extraterritorially would undermine Article 15 of the Convention against Torture.

(iii) The Criminal Justice Act:

The United Kingdom gave effect to the provisions of the Convention by the enactment of the Criminal Justice Act 1988, providing for the prosecution of extraterritorial torture if the offender comes within the United Kingdom.

4. Exercise of the statutory power upon the basis that the Secretary of State was relying upon information provided by an extraterritorial torturer in order to satisfy the condition of his belief or suspicion would be contrary to these principles of international law and international undertakings.  The object of torture is to obtain information. In the face of the clear objective of Article 15 the Secretary of State would be facilitating that object if he were to rely upon  information so obtained.  The torturer who had provided that information would be subject to prosecution under the United Kingdom Criminal Justice Act if he were to come to the United Kingdom.  The information relied upon by Secretary of State might be needed as evidence in that prosecution.  Would the United Kingdom Government, in that event, having enjoyed the fruits of the torture, feel able to carry out its statutory duty to prosecute?  If the torture constituted a crime against humanity, as it would if part of a civilian attack, would the use of the information lead the government to condone that crime by not prosecuting under the UK International Criminal Court legislation?  A similar situation would apply if the United Kingdom were asked to comply with its obligations under the Convention (Art 9) and assist in the prosecution of the torturer elsewhere, possibly needing to provide to the requesting government the information relied upon by the Secretary of State and being asked by that government what the UK knew as to the means by which the information was obtained.  It is not these contradictions, some more and some less probable when considered individually, that is the point of objection but rather that all of them hinge upon the fact that the United Kingdom, by relying on its product, will be encouraging torture.  That would be contrary to the international regime to eradicate torture in which the United Kingdom has undertaken to participate.

It is not therefore permissible for the Secretary of State to use torture-produced information to form a reasonable belief or suspicion.  This would not however prevent him from using the prohibited information to obtain other information, independent of the torture, upon which he could properly rely.

5.  In my view it is clear that the power should be read down to prevent the use of information obtained in this way.  Support for this comes from the abuse of process discussion in the Court of Appeal.  This comes nearest to the approach I favour.  Of course, because the discussion was concerned with evidence and the effect of its admissibility on the curial process, the restriction was not framed in point of power but put upon the basis that it would offend the conscience of the court, etc, if the UK executive were to rely upon evidence obtained by torture  which it had itself instigated.  That would constitute an abuse of the Courts process.  As to this, the first point is that the abuse of process concession by the Court does — indeed must — involve a qualification of the Secretary of State’s statutory power.  He is not permitted to form a reasonable belief if that were to involve reliance upon tortureprocured information.  Laws LJ suggested some overarching constitutional principle for this but at least since Coke the common law has never suggested that its principles can override statute.  They can of course, unless explicitly contradicted, be applied to read down statutory powers and that, although not acknowledged as such, is what the Court of Appeal is quite properly prepared to allow in the event of English torture.  Secondly, the qualification to the Secretary of States powers which the Court is prepared to concede leads inevitably to the exclusion of information obtained by extraterritorial torture. It is the obtaining of information by torture which offends the conscience of the court and because its conscience is offended that the reliance upon information obtained by torture is an abuse of process and contrary to the concept of a fair trial etc.  But whoever commits torture and wherever the torture takes place is irrelevant to the effect of torture upon the conscience of the court, and therefore to reliance upon the information obtained.  Accordingly, a distinction based upon whether the information was procured by an English or foreign torturer is quite unsustainable given international law which binds the UK or to which it subscribes.  One of the authors who commented on the Court of Appeal judgements described the distinction drawn by Laws LJ as myopic.  I can only agree.

6. It does of course follow from this argument that European Human Rights Convention considerations aside the United Kingdom Parliament could expressly enact legislation permitting or requiring the Secretary of State to rely upon information extracted by torture in forming a reasonable belief or suspicion etc, but until it does so, any reliance upon information obtained in that way would be ultra vires.

Explanatory Note:

It has been suggested that there is a need to show that torture as a crime against humanity under international law has become part of the common law if the argument concerning statutory power is to be sustained. It is not necessary for the purpose of that argument for either an international convention obligation or a crime against humanity to become part of domestic law. The argument concerning statutory power does not depend upon either of these creating rights or obligations in UK law.  If one is contending that the Secretary of State is barred from relying upon information which infringes the rules of evidence, it is necessary to show a rule under domestic law  imposing an obligation upon the Court (e.g. SIAC) to that effect an obligation under international law only could not be applied by a Court. Of course in this instance the matter was further complicated by the express exclusion of rules of admissibility in SIAC’s rule 44.

This does not prevent international law being relied upon to construe a statute. As the Australian High Court recently said, although a convention “cannot operate as a direct source of individual rights and obligations … it does not mean that it holds no significance under Australian law.”  I do not think that in either England or Australia it could yet be contended that statutory discretions have to be exercised in accordance with ratified conventions (although Teoh, the High Court decision from which the above quotation is taken, goes a pretty long way in that direction), but  that is not what is being suggested here. It is not a question of a ratified convention being given affirmative effect by the administrative process, but of saying that a statutory power should not be so construed as to defeat an international obligation where because of the generality of the statutory term used ‘may’ such a construction is not compelled.  In fact what is being argued is close to the orthodox rule that statutes must be construed in accordance with the international obligations to which the state is subject either by agreement or by international law.

A fortiori this must be so in the case of crimes against humanity, indeed even more so.  Crimes against humanity are crimes under international law.  They cannot be enforced unless given effect in domestic law but, because they are existing crimes, domestic legislation giving them effect will not be invalidated as retroactive; whereas in the United States international law concerning the Laws of War was incorporated into its common law, international law in this field was directly enforceable without legislation. This though may suggest that there is no substantive difference between a crime against humanity and breach of a convention obligation. It seems to me however more serious for a Minister to be vested with a power to facilitate the commission of crimes against humanity, in this case by being able to act on the information produced by those crimes.  They are by their nature grave crimes.  They are not dependent upon agreement.  To exercise the power in the way suggested would seem to defy the law of nations and the Secretary of State absent specific words granting the power should not be regarded as having been conferred with it.

But unlike ‘torture’ as defined in the Convention or as used in the Criminal Justice Act, the international crime requires that the torture should have been committed in the course of a civilian attack or armed conflict.  The UK ICC legislation would be in the same terms as the Australian Act and I think it can be assumed that customary international law would correspond with the definitions in the Rome Statute. This is narrower than I had recollected until I checked.  It does not affect the validity of the ‘crimes against humanity’ argument because of course if the Secretary of State’s certificate issuing power is unqualified, he could thereby become an accessory after the fact to a crime against humanity by receiving the torturer’s information.  Nevertheless, the narrower application of the crimes against humanity offences limits the importance of the argument.

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