For any reader still pondering on the Torture issue, I recommend the judgment by the House of Lords in 2005 on the issue of when evidence obtained by torture (or alleged to be so obtained) might be admitted in UK judicial proceedings.

There are in fact seven judgments in this case, one from each of the Law Lords. They differ in various respects, including on the seemingly abstruse but vital practical point about the burden of proof in these proceedings: once an allegation of torture is made, does the alleger have to prove the allegation or does the state have to prove that torture did not take place?

Some subtle stuff here (Lord Hope):

My noble and learned friend, Lord Bingham of Cornhill, proposes, however, that the statement should be excluded whenever SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture.

It respectfully appears to me that this would be to replace the true rule, that statements obtained by torture must be excluded, with a significantly different rule, that statements must be excluded unless there is not a real risk that they have been obtained by torture. In effect, the true rule would be inverted.

But read for yourselves the long and fascinating descriptions of the evolution of the legal attitudes to torture here in England and elsewhere, led by Lord Bingham:

I am prepared to accept (although I understand the interveners represented by Mr Starmer QC not to do so) that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence.

But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it.

There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6. Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.

This is not an unusual position. It arises whenever the Secretary of State (or any other public official) relies on information which the rules of public interest immunity prevent him adducing in evidence … It is a situation which arises where action is based on a warranted interception and there is no dispensation which permits evidence to be given.

This may be seen as an anomaly, but (like the anomaly to which the rule in R v Warickshall gives rise) it springs from the tension between practical common sense and the need to protect the individual against unfair incrimination. The common law is not intolerant of anomaly.

Read especially the very clear statement of Lord Nicholls of Birkenhead whose account of the issues is maybe more easy to follow for non-lawyers:

Torture attracts universal condemnation, as amply demonstrated by my noble and learned friend Lord Bingham of Cornhill. No civilised society condones its use.

Unhappily, condemnatory words are not always matched by conduct. Information derived from sources where torture is still practised gives rise to the present problem. The context is cross-border terrorism. Countering international terrorism calls for a flow of information between the security services of many countries. Fragments of information, acquired from various sources, can be pieced together to form a valuable picture, enabling governments of threatened countries to take preventative steps.

What should the security services and the police and other executive agencies of this country do if they know or suspect information received by them from overseas is the product of torture? Should they discard this information as ‘tainted’, and decline to use it lest its use by them be regarded as condoning the horrific means by which the information was obtained?

The intuitive response to these questions is that if use of such information might save lives it would be absurd to reject it. If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way.

Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest.

In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture.

But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this.

See also Lord Hoffman:

As for the rule that we do not necessarily exclude the "fruit of the poisoned tree", but admit relevant evidence discovered in consequence of inadmissible confessions, this is the way we strike a necessary balance between preserving the integrity of the judicial process and the public interest in convicting the guilty.

And even when the evidence has been obtained by torture – the accomplice’s statement has led to the bomb being found under the bed of the accused – that evidence may be so compelling and so independent that it does not carry enough of the smell of the torture chamber to require its exclusion.

Lord Rodger:

Information obtained by torture may be unreliable. But all too often it will be reliable and of value to the torturer and his masters. That is why torturers ply their trade. Sadly, the Gestapo rolled up resistance networks and wiped out their members on the basis of information extracted under torture. Hence operatives sent to occupied countries were given suicide pills to prevent them from succumbing to torture and revealing valuable information about their mission and their contacts.

In short, the torturer is abhorred as a hostis humani generis not because the information he produces may be unreliable but because of the barbaric means he uses to extract it.

The premise of this appeal is that, despite the United Nations Convention against Torture and any other obligations under international law, some states still practise torture. More than that, those states may supply information based on statements obtained under torture to the British security services who may find it useful in unearthing terrorist plots. Moreover, when issuing a certificate under section 21 of the 2001 Act, the Secretary of State may have to rely on material that includes such statements.

Mr Starmer QC, who appeared for Amnesty and a number of other interveners, indicated that, in their view, it would be wrong for the Home Secretary to rely on such statements since it would be tantamount to condoning the torture by which the statements were obtained.

That stance has the great virtue of coherence; but the coherence is bought at too dear a price. It would mean that the Home Secretary might have to fail in one of the first duties of government, to protect people in this country from potential attack.

In the case concerned the British Government lost in its attempt to get certain evidence included. Lord Nicholls again:

In my opinion Parliament, in setting up a court to review the question of whether reasonable grounds exist for suspicion or belief, was expecting the court to behave like a court.

In the absence of clear express provision to the contrary, that would include the application of the standards of justice which have traditionally characterised the proceedings of English courts. It excludes the use of evidence obtained by torture, whatever might be its source.

… But I cannot for a moment imagine that anyone in Parliament who considered the statutory power to make rules of procedure for SIAC could have thought that it was authorising a rule which allowed the use of evidence obtained by torture or that the Secretary of State who made the regulations thought he was doing so.

Such a provision, touching upon the honour of our courts and our country, would have to be expressly provided in primary legislation so that it could be debated in Parliament.

In my opinion therefore, there is a general rule that evidence obtained by torture is inadmissible in judicial proceedings. That leaves the question of what counts as evidence obtained by torture. What is torture and who has the burden of proving that it has been used?

Very (very) broadly speaking, I conclude from this judgment that the the top legal body in the UK drew at least three important conclusions:

  • That it may be acceptable for the state’s executive authorities to receive/acquire and use information which they know or think may have been derived from torture, if they believe that there is a clear public interest in doing so (eg saving lives) 
  • But it is not acceptable for the judicial authorities (courts and tribunals) to hear and use such evidence in reaching conclusions directly affecting the rights of individuals
  • If seemingly well-founded allegations are made that evidence has been or may have been produced by torture, the court/tribunal has to consider most carefully how to deal with that evidence, but is not bound to conduct an exhaustive investigation of the origin of the evidence to reach a final view as that would just not be possible

Craig Murray in his book cites this judgment and the government’s defeat as the Law Lords ‘upholding the values of civilisation’. Indeed they were, but not in a way which gives him and anyone else opposing torture under any circumstances a slam dunk victory.

As you can see for yourself, those values involve some very fine-tuned balancing between rival principles, practice and practicalities in this fearsomely complex policy area. With a strong dose of British common sense thrown in for good measure.

All in all, this judgement in its balanced but principled way defines for us what our civilisation in fact is?