Information which may have been obtained by foreign states using torture cannot be used as evidence against suspects in secret UK terror tribunals, the Law Lords ruled today.
A panel of seven Law Lords unanimously agreed to allow the appeal by eight detainees held without charge on suspicion of involvement in terrorism against a controversial Court of Appeal judgment in August last year. By a two-to-one majority, the appeal judges had ruled that if the evidence was obtained under torture by agents of another country with no involvement by the UK, it was usable and there was no obligation by the Government to inquire about its origins.
The Law Lords rejected the Court of Appeal judgment and Lord Bingham of Cornhill, the former Lord Chief Justice who headed the panel, was especially trenchant, saying that English law had regarded "torture and its fruits" with abhorrence for more than 500 years.
"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," Lord Bingham said.
He added: "The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice."
The House of Lords ruling means that the Special Immigration Appeals Commission (Seac), which hears cases involving foreign terror suspects, can no longer consider evidence that would not be acceptable in a criminal court trial. It also calls into question the detention of some of those held under such evidence.
In the past, Seac has relied on information provided, for example, from the interrogation of suspects at the American detention camp in Guantanamo Bay, Cuba, despite evidence that conditions and methods at that camp do not comply with international standards.
The issue is particularly topical given the current controversy about the United States' use of "extraordinary rendition" to transport terror suspects to Afghanistan and, allegedly, to secret CIA prisons in Romania and Poland.
The US Secretary of State, Condoleezza Rice, has defended extraordinary rendition but said yesterday that US personnel abroad were bound by the United Nations Convention against Torture just as much as if they were on American soil. The White House has denied that there has been any shift in policy.
In New York there was an unseemly spat between Louise Arbour, the UN human rights chief, and John Bolton, the US ambassador to the world body, after Ms Arbour used the annual celebration of the 1948 Universal Declaration of Human Rights to warn that the ban on torture was becoming a "casualty of the so-called ‘war on terror'".
In an apparent attack on UK policy, Ms Arbour also criticised the use of "diplomatic assurances" to allow the return of terror suspects to countries where they faced a high risk of torture.
The eight detainees held in the UK without charge on suspicion of involvement in terrorism had been supported by Liberty and a dozen other human rights organisations. Shami Chakrabarti, the director of Liberty, said: "This is an incredibly important day, with the Law Lords sending a signal across the democratic world that there is to be no compromise on torture. This is also an important message about what distinguishes us from dictators and terrorists. We will not legitimise evidence obtained by torture by using it in our justice system."
Amnesty International said that the decision meant that the UK Government must re-affirm its ban on torture and torture evidence. The Law Lords had confirmed that evidence obtained through torture was never acceptable except in proceedings against the alleged torturer.
The ruling confirmed the otherwise absolute inadmissibility in judicial proceedings in the UK of "evidence" extracted under torture, said Amnesty. "It is deplorable that the UK Government had to be taken to court over this. Over the last two and a half years the authorities have shamefully sought to defend the indefensible," it said in a statement.
"This is a momentous decision. The Law Lords’ ruling has overturned the tacit belief that torture can be condoned under certain circumstances. This ruling shreds any vestige of legality with which the UK government had attempted to defend a completely unlawful and reprehensible policy, introduced as part of its counter-terrorism measures.
"The UK judiciary must now re-examine where ’evidence’ extracted under torture may have been used in previous proceedings. It is also now imperative that the UK Government drops the so-called Memoranda of Understanding on the basis of which it is seeking to deport alleged terror suspects to countries where they are at risk of torture. Such memoranda are nothing other than another attempt to give a cloak of legality to that which is unlawful."
In New York, Ms Arbour's comments about the threat to the global ban on torture - and her decision to single out the US - brought a sharp rebuke from Mr Bolton, who said it was "inappropriate and illegitimate for an international civil servant to second guess the conduct that we’re engaged in the war on terror, with nothing more as evidence than what she reads in the newspapers".
Ms Arbour called on the United States, the UK and others to state clearly and unambiguously what practices they accepted and did not accept in the interrogation of suspects, whether they operate secret detention centres at home or abroad, and to provide details. She also called for a ban on returning people to countries where they may face torture and on secret detentions, access to all prisoners, and prosecution of those responsible for torture and ill-treatment.
The UN rights chief welcomed Dr Rice's statement that the US government supported the prohibitions in the UN Convention against Torture, and their extension to US personnel everywhere. The 1994 treaty also prohibits certain treatment that does not meet the legal definition of torture, including interrogation techniques used at Guantanamo Bay, where several hundred Muslim men have been held without charge for nearly four years.
At every stop on her European tour this week, Dr Rice has faced questions about US practices in the pursuit of terrorists, including whether the CIA has run secret prisons on European soil or mistreated prisoners. She was expected to be grilled again today by Nato foreign ministers at a meeting in Brussels.
