The Law Lords on torture: magnificent, but for the worm in the apple
Lord Bingham, the senior law lord and a former Master of the Rolls and Lord Chief Justice, is probably the most brilliant judge, with the most penetrating intellect, that this country has produced in a generation. The law lords’ judgment on the inadmissibility of evidence obtained by torture, under Bingham’s chairmanship, has added yet more lustre to his record and reputation. It’s not in any way his fault that by a majority of four to three his colleagues insisted, against his advocacy, on imposing a test for determining whether information is likely to have been derived from torture which will almost certainly negate the practical effects of the judgment. In the general euphoria that has greeted the judgment, this seems to have been largely overlooked.
Yesterday’s (8 December 05) judgment by the Law Lords ruled that the Special Immigration Appeals Commission (SIAC) and other UK courts may not admit evidence that has probably or certainly been obtained by the use of torture, even if the torture occurred in a foreign country without the knowledge or connivance of Britain. This is of course hugely welcome, and a landmark, especially after the British government has spent nearly three years arguing the contrary – and after the astoundingly contrary findings of SIAC and the Court of Appeal.
But the devil, as always, is in the detail, and the majority of the Law Lords have unfortunately laid down a test for establishing whether a piece of information has probably been got by torture which Lord Bingham himself believes —
is a test which, in the real world, can never be satisfied. … The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC because its source will not have been "established". [My emphasis — BB]
Lord Bingham and his two next most senior colleagues proposed that the test for establishing, on the balance of probabilities, that a piece of information had been obtained by torture should be that if there is a plausible reason for suspecting that torture has been the source, for example because the information comes from a country known to practise torture, —
or where SIAC with its knowledge and expertise in this field knows or suspects that evidence may have come from such a country, it is for SIAC to initiate or direct such inquiry as is necessary to enable it to form a fair judgment whether the evidence has, or whether there is a real risk that it may have been, obtained by torture or not. All will depend on the facts and circumstances of a particular case. If SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit the evidence. Otherwise it should admit it.
But, sadly, this admirable formula was outvoted by a majority of their lordships, who preferred the test suggested by Lord Hope:
… the test that should be applied by SIAC [which] must direct its inquiry to what has happened in the past [is:] Is it established, by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? If that is the position, article 15 [of the UN Convention Against Torture] requires that the information must be left out of account in the overall assessment of the question whether there were no reasonable grounds for a belief or suspicion of the kind referred to in … the Anti-terrorism, Crime and Security Act 2001. The same rule must be followed in any other judicial process where information of this kind would otherwise be admissible.’
Lord Bingham laments that the adoption of this alternative test will in practice negate the effect of the judgment as a whole:
This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet. The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC because its source will not have been "established". … I regret that the House should lend its authority to a test which will undermine the practical efficacy of the Torture Convention and deny detainees the standard of fairness to which they are entitled under article 5(4) or 6(1) of the European Convention. [My emphasis — BB]
SIAC and other courts have only one way to ‘investigate’ the nature of the source of information served up to them to justify wrecking people’s lives on the basis of mere suspicion: and that is to ask the intelligence and security services to find out for them ("as far as is practicable") whether torture was used to get the information, to enable the court to judge whether there’s a probability of torture having been used. There can be no other basis for such an assessment. You may be sure that after a decent interval the reply will be to the effect that they have made all possible ‘diligent’ enquiries and while all sorts of unpleasant things are possible in this wicked world, they haven’t come up with anything to suggest the ‘probability’ that the info is the product of torture. They may even admit that there’s a ‘possibility’ that it is, but that’s not enough under the formula devised by the majority in the Lords to make it inadmissible. The much more rigorous formula devised by Lord Bingham and his two most senior colleagues would have required the security services, in cases where there was a plausible suspicion of torture having been used, to satisfy SIAC etc that it probably had not been. But that was outvoted by the more junior (and more gullible) four.
No wonder Hazel Blears and other home office ministers went on radio and television yesterday so cocky and triumphant, grossly misrepresenting the fact of the government’s actual defeat and humiliation on the point of principle, but claiming (probably correctly) that in practice nothing whatever would change. The government Neanderthals have lost the battle but won the war.
All is not, of course, necessarily lost. The issue of the test to be applied might, with luck and ingenuity, be referred to the European Court of Human Rights, which could well prefer the Bingham formula to that adopted by the Law Lords’ majority. In practice, moreover, the relatively narrow gap between the two formulas might not turn out to have much real significance, although Lord Bingham’s pessimistic prophecy strongly suggests otherwise. In an ideal world, we would be able to look to parliament to substitute the Bingham formula for the one laid down on Thursday by the Lords’ majority. But that is in the realm of fantasy, at any rate for any foreseeable future government.
Note: Article 15 of the UN Convention against Torture provides that —
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.
There is always the temptation to excuse the practices of torture by considering the severity of the accusations against the tortured but the reality of this evil practice was brought home to me by an asylum seeker who’s care I was involved with as a surgical SHO during the late 1980s at St Georges. This patient had been repeatedly tortured in some tinpot African dictator’s gaol until his anal sphincter had been destroyed, leading to permanent faecal incontinence and a spirit that had been broken. He shook as I took a medical history detailing his torture and the flashbacks he experienced due to his PTSD.
Distasteful to recount on this blog, I’m sure, but the reality of torture is that it’s evil, the people who carry it out are evil and anyone who profits by it are tarred with the same brush.
I’m grateful for Patrick’s powerful and vivid comment. It helps to bring home the physical reality of what ‘torture’ can mean for a human being.
Jarndyce has posted some interesting (and more optimistic) comments on this on his own blog: well worth a visit.
I’ve managed the plough through the entire 91 pages of the judgement.
And yes, I think Lord Bingham was right.
I can just see him pulling his hair out as he reached Article 15 of the CAT. He wants to do justice to those who could be detained without charge for long periods. He sees the difficulty SIAC may be placed in when they “investigate” the sources of the evidence, but he meets the barrier of the clear words of the Art. 15
Instead of facing the difficulty head on and perhaps finding himself in the Lord Hope camp, he tries a shimy.
Let’s just forget that blasted word “established” and create a new test.
Much as I want to agree with this approach, the rules of statutory interpretation lead me to the majority view.
Brian replies: Well, I think it all depends on which you regard as more important: respect for the rules of statutory interpretation of a specific international agreement taken in isolation (whose importance I certainly don’t disparage) or avoiding an interpretation of a major international Covenant which will in practice frustrate its principal purpose and will also conflict in its practical effect with the rest of the law in respect of torture. The latter seems to me more consistent both with common sense (which I recognise isn’t necessarily the same thing as a correct application of a legal text) and with the preservation of an important principle not only of a specific international covenant but also of customary international and domestic common law going back, in the case of UK common law, for more than three centuries. In other words, I think that the law lords would have been entitled to adopt a test for ‘establishing’ whether a piece of information had probably been obtained by torture which reflects not only Article 15 of UNCAT but also the whole corpus of international and national common and statute law, including incidentally the Human Rights Act and European Convention of Human Rights, as well as all the other numerous authorities cited throughout all seven judgments. As I understand it, that was the view taken by Lord Bingham, invariably an exceptionally careful and scrupulous judge, and his two next most senior colleagues. This is not, as I see it, a conflict between three judges taking an adventurously ambitious view of their right and duty to make new law as well as to interpret existing law, versus four of their brethren who took a more conservative and strictly interpretative view of the court’s functions: it seems to me more a question of interpreting the whole corpus of existing law and not just one instrument of it, however important, plus avoiding an interpretation of one instrument that would have the practical effect of frustrating its obviously intended effect.
But you’re a lawyer, and I’m not, so I advance my interpretation with considerable diffidence.
Incidentally, what’s a ‘shimy’?
Should be shimmy I think.
It’s a dance.
“I wish I could shimmy like my sister Kate.
You should see her shimmy like a jelly on a plate.”
Jelly Roll Morton (I think)
The song was written by Armand Piron, the lyrics: