“Torture is wrong”: Discuss
28 February 2011
Ahmed & Anor v R  EWCA Crim 184 (25 February 2011) – Read judgment
“Torture is wrong”. The court of appeal made this simple and it would be hoped obvious statement in the appeal of two men convicted of terrorism and being active members of Al Qaeda. But, it turns out, the position on torture is not as clear as those three simple words.
Rangzieb Ahmed and Habib Ahmed were British citizens, born in Lancashire. They were jailed in 2008 for being members of Al Qeaeda and planning mass murder. During the trial, Rangzieb applied to the judge to stop the prosecution, on the basis that it would be an abuse of process to try him. He claimed that he was tortured whilst he was in custody in Pakistan. He said that amongst other things, he had been beaten and had his fingernails removed. He also claimed that British officers questioned him on one day of his captivity.
His argument was that UK authorities had sufficient connection with that detention to amount to “complicity” in torture and that if so, no prosecution of him could properly be allowed to continue without affronting the fundamental principle of international law which outlaws torture.
The judge refused the application, and held that the test of whether a prosecution should be stopped was whether any torture or ill treatment, if there had been any, impacted upon the trial.
Both men appealed, with the main question for the appeal being whether the judge was right not to stay the trial.
Torture and law
The appeal court began by reviewing the domestic and international law on torture. The starting point is that “it is clear public international law that torture is outlawed” (para 27).
This has also been the case in English common law since at least the 1689 Bill of Rights, which outlaws “cruell and unusual punishments“. This language has been mirrored in a number of more modern legal sources, including Article 5 of the Universal Declaration of Human Rights 1948, the 1984 United Nations Convention against Torture which 147 of the 192 members of the UN, including the UK, have signed up to (para 28) and the 8th Amendment to the United States Constitution. Article 3 of the European Convention on Human Rights outlaws torture, inhumane and degrading punishment.
The most basic requirement of the Torture Convention is that torture should be outlawed. In the UK it is, in the sense that it is a crime. And, it is a longstanding principle of English law as well as the Torture Convention that evidence should not be admitted into court that is the product of torture. So nobody should be convicted on the basis of evidence obtained under torture.
So far, so straightforward. But now things start to get a bit less clear. The Torture Convention provides the most detail as to what does and does not constitute torture (para 30). Importantly, unlike article 3 ECHR, it distinguishes between torture and “cruel, inhuman or degrading treatment or punishment which do not amount to torture“.
This is important, as the English courts have stated that whilst evidence obtained by torture cannot be admitted into court, evidence obtained as a result of cruel and unusual punishment could (see para 53 of A (No. 2)). That being said, there are other rules in English law, such as the bar on evidence obtained by oppression, which would probably exclude it anyway.
Torture and unfair trials
Taking the rules on torture into account, the question for the court of appeal in this case was:
If intelligence is regularly shared with a State where there exists the possibility that torture may be employed, when should a prosecution against a man who has been in the hands of that State be stayed?
The court reminded itself of a vital distinction which had been drawn in an earlier House of Lords case, A v Home Secretary, between evidence used in court obtained by torture, and the use which may have to be made of the same evidence “by non-judicial authorities in discharge of their duties to protect public safety“. The former is prohibited by the common law, as well as by public international law. The latter is not (para 33), as
in deciding to certify that he reasonably believes a person to be a risk to national security, the Home Secretary is entitled to rely on material gathered from a foreign source, with which information and intelligence is shared, even if such material might be the product of torture. Likewise, the security services or the police are not required to close their eyes to information which helps to protect the public’s safety
So, whilst it would be unlawful for a court to use evidence obtained by torture (the test being if there is a “real risk”: see para 56 of A & Ors), it would not necessarily be unlawful for a public authority to use such evidence. Lord Hope even went further, saying that not merely is the executive entitled to make use of the information, “it is bound to do so”.
It should be emphasised that this does not amount to an endorsement of the tactics of Jack Bauer of the TV series 24. It is still contrary to the criminal law for authorities to be complicit in or encourage the use of torture, and this includes rendition, the topic of an upcoming public inquiry. This does beg the question: what does it mean to be complicit? That was the thrust of Rangzieb Ahmed’s argument; that the courts risked, by allowing a prosecution connected to (potentially) state-sponsored torture, even if the torture element was tangential to the focus of that prosecution, was to tacitly endorse the torture itself.
Article 4 of the Torture Convention, in requiring States to make torture an offence, also stipulates also that the offence created must extend to complicity or participation in torture. The appellants argued that the definition of complicity should be drawn wider than it currently was in the English law. They drew on, amongst other things, a statement of Lord Neuberger in A (No. 2):
… even by adopting the fruits of torture, a democratic State is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys.
The court of appeal was unconvinced. The documents cited were “not based upon either treaty or customary law” and would represent significant extensions” to the Torture Convention.
It was therefore also unwilling to consider the prosecutions should be stayed simply because they were in the widest sense associated with torture. This was considered a step too far, and outside of its remit. It is not for the courts to discipline the executive unless by way of a criminal prosecution:
The jurisdiction does not exist to discipline the executive, the police or the intelligence services, although it may incidentally do so. It exists to preserve the integrity of the trial process. (39)
And it could not be right that every act of torture has the consequence that the tortured person becomes immune from prosecution in every country and for all time, whatever crime he may commit (40).
The judge had been right, therefore, to rule that there must be a connection between the torture and the prosecution. Even if there had been torture whilst Rangzieb was in Pakistan, it had no bearing on the trial and there was no reason why the question of whether or not he was guilty of an antecedent crime in England should not be decided according to law.
Fruit of the poisoned tree
As I have discussed in a previous post, evidence obtained under torture is generally excluded in English law. But Ahmed & Anor demonstrates that the longstanding moral repugnance towards torture and its fruits, a part of English law since the 17th century, only extends so far.
The courts consider it to be their role to protect the right to a fair trial and enforce the criminal law as it has been codified by Parliament. That law prohibits torture and complicity in torture, but does not prohibit use by the security services of information obtained through torture. Some may consider this to be practical and prudent: it would be hard to justify ignoring information which would have alerted authorities to a terrorist attack, whatever the origin that information.
Some, however, would argue as the men in this case did that utilising evidence obtained under torture amounts to condoning it. International law moves slowly but perhaps the second view will eventually gain ground over the first. But on the basis of the Court of Appeal’s decision, which after all reflects strong House of Lords and European Court of Human Rights authority, that change in focus will have to come from outside of the courts.
The upcoming public inquiry into rendition could push this issue further. There will have to be a clearly defined definition of complicity in play in order to say to what extent the UK government did or did not participate in torture abroad. Of course, that inquiry cannot apportion criminal blame. But it seems likely that the issues explored by the court of appeal, and the ethical dilemmas within them, will be revisited. The allegations made by the two men in the most recent case are also likely to be investigated.
In the meantime, whilst it is tempting to say “torture is wrong” and leave it at that, the situation in English and international law is a lot more complicated than that.
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A great post on this rather lengthy judgment. The judgment is good reading for a number of reasons including discussion of “abuse of process” – peremptory norms of international law – how principles of international law can find expression in domestic legal systems – statutory interpretation (use of supposedly “ordinary” words which judges then try to explain !!) etc.
Whilst entirely seeing the reasoning in A (No 2) and in this case (Ahmed) it is also possible to see the powerful reasoning of the UN Rapporteur even if it is aspirational. Much more needs to be done to bring torturers to justice and it would be good to see the UK driving forwards on this issue. The Torture Convention is now almost 30 years old and a review of it might be needed – (way above my pay grade)! Liberal democracies need to refresh their commitment to it so that the torturer, “like the pirate and the slave trader before him, becomes hostis humani generis, an enemy of all mankind” – (*).
I also think – and say it with the greatest of respect – that the Gibson Inquiry is tainted from the outset by the view that somehow here is a judge in his own cause. I know that this is not strictly the case but perception is always important. It will weaken in the public mind his ultimate report (even if the public do not get to see it).
Given that the Terrorism Act 2000 s.11 offence was antecedent to Ahmed’s detention in Pakistan, the judgment appears to be right since nothing done to him there (assuming anything was) could alter what he had been involved in before going there.
* Filartiga v Pena-Irala – US Court of Appeals, Second Circuit, 1980 – cited by Antonio Cassese in International Criminal Law – Second edition – OUP 2008.
Great post. The notion of an absolute prohibition is linguistically so easy but practically so difficult.
It has come into the public eye with the deportation of foreign terrorist suspects abroad where there is risk of torture. At what risk level can we deport, and still maintain this absolute prohibition?
Torture evidence is even harder or the ‘fruits of the poison tree’ (though it seems this was not directly in issue in the case). In a factually fascinating case this summer, Gafgen v Germany, the Grand Chamber ECtHR seems to imply that as long as there are procedural safeguards at trial then there is no breach of article 6 where evidence which has been indirectly gained from torture is admissible. Though it was never considered whether use of this evidence was a breach under article 3. Note also article 15 of the Torture Convention on statements obtained by torture being inadmissible. For more on Gafgen, see http://tinyurl.com/5s8dx5p
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