Landmark House of Lords Decision in Torture Evidence Case
REDRESS, the international NGO that represents torture survivors in the UK and abroad, and one of 17 organisations which intervened in the case of A (FC) and others v Secretary of State for the Home Department, welcomes today’s decision that evidence obtained by torture is inadmissible in British courts.
“We commend the Law Lords for this landmark judgment which upholds international law and strengthens the struggle against torture around the world. The prohibition on use of torture evidence is a crucial safeguard against torture. If the evidence cannot be used it will not be sought, and therefore the judgment serves as an important deterrent to the reported practices of extraordinary rendition and outsourcing of torture,” REDRESS’ Director Carla Ferstman said.
The Law Lords unanimously confirmed the absolute nature of the rule prohibiting the use of torture evidence. They stated that this rule applies to all proceedings even when countering terrorism, and as Lord Bingham of Cornhill stated, “It trivialises the issue before the House to treat it as an argument about the law of evidence. 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.”
The Lords further emphasised that the absolute nature of the prohibition against torture requires that States take positive steps to prevent torture, such as ensuring that domestic legal systems outlaw the use of torture evidence. Importantly, they recognised the binding nature of article 15 of the UN Convention against Torture, which reflects this principle.
REDRESS stands firmly with the many torture survivors with whom it has worked over the years, whose views on the Law Lords’ decision are reflected as follows:
- “I am more than pleased that the Lords rejected absolutely the validity of evidence obtained by torture. It is a major victory for humanity.” — Dr William Sampson, tortured in Saudi Arabia
- “I support this decision, of course. Torture needs to be resoundingly condemned, always.” — Leopoldo Garcia, tortured in Pinochet’s Chile
- “This is excellent news. I hope Condoleezza Rice takes notice of the judgment, and the American Government. We want to stop torture everywhere, wherever it happens.” — Les Walker, tortured in Saudi Arabia
- “Torture cannot be a part of civilised life. No country should condone it or fail to prosecute those who do it in their country.” — Necati Zontul, tortured in Greece
- “I can only agree with this very basic principle that torture evidence should never be used. When you torture anyone they are no longer in control, and anything they say is forced. It is wrong, whether it be mental or physical torture. People will say anything under torture, and this is what happens in prisons in the Philippines – I know, because I was there on death row.” — Suny Wilson, tortured in Philippines
- “This landmark ruling will resonate throughout the world,” — Keith Carmichael, tortured in Saudi Arabia
Whilst the Law Lords held unequivocally on the non-admissibility of torture evidence, they differed in their reasoning as to how practically the issue should be dealt with by the Special Immigration Appeals Commission (SIAC). There was broad recognition that to require the individual who is calling into question the evidence to affirmatively prove that it was obtained through torture could not work in SIAC cases, where he or she may not know the name or identity of the author of the statement or know what the statement says. It was also broadly recognised that whilst the initial burden was on the individual seeking to call into question the evidence, this would quickly be displaced to SIAC, as only SIAC would have the wherewithal to undertake such an inquiry.
The Law Lords main area of difference related to how the findings of such an inquiry could or should be characterised. The majority (4-3) appeared to favour the position that it is necessary to establish without doubt that the evidence was indeed obtained under torture, otherwise such evidence should be admissible. The minority recognised that torture is exceedingly difficult to prove, and therefore when there is a doubt as to whether torture was used to obtain the evidence, such evidence should be excluded.
Whilst it is clear that the Law Lords have struggled with this aspect of the decision, it is hard to see how SIAC could affirmatively establish that torture occurred. As was noted by Lord Bingham of Cornhill (for the minority), “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 coalition which intervened in this case was represented pro bono by Keir Starmer QC, Mark Henderson, Joseph Middleton, Peter Morris, Laura Dubinsky, all barristers at Doughty Street Chambers, and Richard Stein, Jamie Beagent, Rosa Curling, and Jo Hickman of Leigh Day & Co Solicitors.
In addition to REDRESS, the other organisations making up the coalition were: Amnesty International, The Advice Centre on Individual Rights in Europe (The AIRE Centre), The Association for the Prevention of Torture, British Irish Rights Watch, The Committee on the Administration of Justice, Doctors for Human Rights, Human Rights Watch, The International Federation of Human Rights, INTERIGHTS, The Law Society of England and Wales, Liberty, The Medical Foundation for the Care of Victims of Torture, and World Organisation Against Torture.
REDRESS was founded by a British torture survivor in 1992. Since then, it has consistently fought for the rights of survivors in the UK and abroad. REDRESS takes legal challenges on behalf of survivors – it works to ensure that torturers are punished and that survivors and their families obtain remedies for their suffering. REDRESS cooperates with civil society groups around the world to eradicate the practice of torture once and for all and to ensure that survivors can move forward with their lives in dignity. More information on our work is available on our website: www.redress.org