UK would have been obliged to use torture evidence to find Bin Laden
3 May 2011
The New York Times reports that after years of promising leads gone cold, the final piece of evidence which led to Osama Bin Laden was found by interrogating detainees in Guantanamo Bay, Cuba. Given the rough interrogation techniques which were in use at the prison camp, the killing has reopened the debate over torture, and whether it is ever justified.
Blogger David Allen Green, amongst others, asks whether the Bin Laden scenario may amount to an exception to the “otherwise absolute rule” that torture is wrong. I would like to pose a slightly different question: on the basis of current UK law, would it have been lawful for UK authorities to use information obtained under torture to capture or kill a known terrorist?
The answer may surprise you. In a recent court of appeal case, Ahmed & Anor v R  EWCA Crim 184, a man charged with terrorism claimed that the UK had been complicit with his detention and alleged torture in Pakistan, and therefore his prosecution should be stopped (see my post on the case for a full summary).
The court of appeal began by stating, quite plainly, that “torture is wrong”. It is also straightforwardly unlawful for UK authorities to use torture themselves. If it were not unlawful, the UK would be in breach of its obligations under the United Nations Convention against Torture as well as article 3 of the European Convention on Human Rights.
Moreover, it is prohibited under the common law, as well as international law, to use evidence obtained under torture in court.
But what about non-judicial authorities using information obtained under torture by someone else? Here the situation is quite different. It is lawful to use that information to capture someone who is at risk to national security. As the court of appeal said at para 33:
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. In A & Ors 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”.
Perhaps not the answer you were expecting, but if the UK authorities had information which could lead to a terrorist leader, and that information had been obtained under torture, they would be “bound” to use it.
It is quite another question as to whether it would have been lawful for the UK authorities to kill Bin Laden, and one which I will leave to the international law of war experts.
But English law is comfortable with authorities using torture evidence to capture terrorists, although once a prosecution reached court, the situation would be more complicated. One question about the Bin Laden killing which may remain unanswered is whether the decision to kill rather than capture him was made with the knowledge that any trial may have been prejudiced by torture evidence which led to his capture.
But, as things stand, although torture is outlawed and wrong under both domestic and international law, the moral and legal rules relating to evidence obtained under torture are a lot more murky.
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