UK would have been obliged to use torture evidence to find Bin Laden

3 May 2011 by

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 [2011] 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

4 comments


  1. Alex says:

    Has Hitler’s death made the world a better and safer place?
    http://betweentwosouths.blogspot.com/2011/05/osama-bin-laden-death-does-not-make.html

  2. A global celebration of a death! Obscene.

  3. http://rightsincontext.eu/2011/05/02/i-am-not-happy-for-your-death-osama-bin-laden/

    I am not happy for your death, Osama bin Laden

  4. ObiterJ says:

    Could the UK authorities use information obtained by torture?

    Yes. A and others is clear authority for this.

    Would the UK be bound to use information obtained by torture?

    I think only Lord Hope went quite that far. Whether to use such information is surely a matter for the executive to consider. Politically (as opposed to legally) the authorities might well consider that they must use the information

    The “real risk” test – i.e. is there a “real risk” that the information may have been obtained by torture? If so, SIAC should not to admit it.

    In A and others, there was some difference between their Lordships as to the “test” to be applied. Lord Bingham stated the “real risk” test but also said (at para 57) that the majority of his “noble and learned friends” did not agree with him on this point.

    Hope I’ve got that right.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: