Fruit of the poisoned tree: evidence obtained under torture in the UK
7 October 2010
The New York Times reports that those prosecuting Ahmed Khalfan Ghailani in the first civilian trial of a man held at Guantanamo Bay have suffered a setback: “just as the trial was to begin on Wednesday, Judge Kaplan ruled that he would not allow [a man who was to testify that Ghailani sold weapons to him] to testify. … the government had acknowledged that it had identified and located the witness through interrogation of Mr. Ghailani when he was earlier held in a secret overseas jail run by the Central Intelligence Agency. His lawyers have said he was tortured there.” The judge said:
… the Constitution is the rock upon which our nation rests… We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.
What would happen if the issue had arisen in the UK? In fact, a similar case famously came before the House of Lords (now the Supreme Court) just under 5 years ago. The House of Lords ruled in 2005 in the case of A & Ors v. Secretary of State for the Home Department  UKHL 71 on the appeal of ten men accused of terrorism. The men challenged the ruling of the Court of Appeal that evidence obtained in United States detention camps could be used in proceedings against them.
The House of Lords ruled that the evidence should always be excluded if it was more likely than not that it had been obtained under torture. The court relied on a combination of the common law, Article 3 of the European Convention on Human Rights, and principles of public international law. Lord Bingham, who sadly passed away last month, gave the leading judgment, and could hardly have put the principle in stronger terms:
… the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.
He went on:
The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflicted. To that question I would give a very clear negative answer.
Ultimately, Lord Bingham stressed that the executive and the judiciary have different functions and different responsibilities. It is one thing “for tainted information to be used by the executive [or the police] when making operational decisions“. It is quite another, however, “for the judicial arm of the state to admit such information as evidence when adjudicating definitively upon the guilt or innocence of a person charged with a criminal offence. In the latter case repugnance to torture demands that proof of facts should be found in more acceptable sources than information extracted by torture.”
In the years following, Lord Bingham’s robust restatement of the rule of law was cited in a number of cases which have reached the UK’s highest courts, most notably the litigation surrounding UK citizens who allege they were tortured whilst detained abroad, including in Guantanamo Bay. The UK courts, emboldened by new powers under the Human Rights Act as well as the A & Ors. case, have placed the actions of the security services firmly in the public eye where they were once in the shadows, and have consistently criticised illiberal government policy. A great distance has been travelled away from judicial deference to the security services since Lord Denning said that “In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England.”
So, if the same situation arose in the UK, and the evidence in issue was more likely than not to have been obtained under torture, or a “real risk” that it had been (see para 56 of A & Ors) it would be excluded from court. However, if there was merely an unrebutted suspicion that the evidence had been obtained under torture, the evidence would be allowed. So it would be wrong to say that evidence obtained under torture would never be used in a UK court: rather, evidence which had probably been so obtained would be excluded.
In the US case, Judge Kaplan said that “the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence.” It would appear that since it was established (that is, at least more likely than not) that Ghailani’s statement was “coerced”, the prosecutors had to divorce the witness’s statement from that tainted evidence. It had failed to do so. Following the A & Ors case, the result in the UK would probably be the same. In light of Lord Bingham’s ruling, no UK court would dare to do otherwise.
Updated, 7 Oct: The post has been updated to reflect the initial confusion between two different A & Ors cases, both with leading judgments by Lord Bingham. The case referred to above is not the so-called ‘Belmarsh case’, which related to detention without charge, and can be found here. Apologies for that.
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