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March|April 2006
The Accidental Abolitionist By Jake Lundberg
Elsewhere
A Firebrand Flickers By Deborah Dinner
Lordly Law By Louise Arimatsu

Lordly Law

Britain's high court ruled that evidence procured through torture is tainted, regardless of where, by whom, or on whose say-so it was inflicted.

By Louise Arimatsu

IN DECEMBER THE APPELLATE COMMITTEE OF THE HOUSE OF LORDS, the highest court in the United Kingdom, ruled unanimously that evidence obtained through torture is not admissible in British courts. The judgment came in what is known as the Torture Evidence case. It's the second of two landmark rulings by the law lords that call into question the propriety of the Blair government's antiterror policies and legislation. A year before, in the Belmarsh case, the law lords ruled that indefinite detention of suspected foreign terrorists was incompatible with human rights because it discriminated between foreign and U.K. suspects.

The issue before the law lords this time was whether evidence procured, or possibly obtained, through torture by officials of a foreign country, without the involvement of British authorities, was admissible before the Special Immigration Appeals Commission, or SIAC. SIAC is a recently created tribunal that handles appeals in cases where the British government, under the 2001 antiterrorism law, certifies that there's enough evidence to suspect someone of being an international terrorist. Enacted by Parliament in response to the atrocities of September 11, the law significantly increased the government's power in the war on terror: It gave Britain's home secretary, the minister responsible for what Americans call homeland security, the authority to deport, remove, or detain a non-national whose continued presence in the U.K. was deemed a national security risk.

That the executive branch could act on information procured through torture was not generally in dispute. At issue was whether a judicial body could take the same information into account in assessing the detainee's appeal. The law lords responded with a resounding "No."

THE APPELLANTS IN THE TORTURE EVIDENCE CASE were eight suspected terrorists who were thought to be held at Belmarsh prison without charge, some for as long as four years. According to the appellants, some of the evidence relied on by the home secretary to detain them under the antiterrorism law consisted of statements from people thought to be held at Guantánamo Bay, where incriminating statements obtained as a result of "stress and duress" interrogation methods have been challenged by human rights groups as torture evidence. In addition, the appellants claimed that the home secretary had relied on information extracted from detainees transferred by the United States to various countries, including Egypt, Jordan, and Morocco, where the use of torture to procure information is common.

Lawyers for the appellants argued that the rule preventing British courts from using evidence obtained through torture by British officials should be extended to incriminating statements gotten through torture by agents of a foreign country. The Court of Appeal, the court below the law lords, rejected this contention and held that evidence gained through torture could be used if British authorities weren't involved. Its rationale was that the home secretary had not abused his powers, since he had neither procured the torture nor "connived at it." Whether such evidence was admissible, according to the appeals court, was a question that fell within the law of evidence. In the unanimous judgment of the law lords overruling that decision, however, Lord Bingham of Cornhill concluded: "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."

Lord Bingham, the only person who has occupied three of the highest judicial offices in England and Wales, is considered the country's most distinguished judge. He was the senior civil law judge, called the master of the rolls, and then lord chief justice, the senior criminal law judge, before being appointed to the highest judicial office of senior law lord in 2000. Regarded as a leading reformer of the judiciary, Bingham supports the creation of a supreme court to replace the law lords. His decisions are respected for their clarity and breadth of knowledge. Relying heavily on common law precedents and the writings of English jurists as far back as the 15th century, Lord Bingham observed that "from its very earliest days the common law of England set its face firmly against the use of torture," and that the English common law has "regarded torture and its fruits with abhorrence for over 500 years."

According to Lord Bingham, the history of the common law rule excluding involuntary statements or confessions is based on the belief that such evidence is inherently unreliable and that it falls far below the minimum standard of "civilized conduct" that has come to be expected in all common law jurisdictions. (The phrase "civilized conduct" was borrowed from Justice Felix Frankfurter and his opinion for a unanimous U.S. Supreme Court in a 1952 case where the justices ruled that it was unconstitutional for doctors to obtain evidence on police orders by pumping a defendant's stomach against his will.) For Lord Carswell, former lord chief justice of Northern Ireland until his appointment as a law lord in 2004, the prospect of admitting evidence procured by torture "would shock the conscience, abuse or degrade the [judicial] proceedings and involve the state in moral defilement" ("shock the conscience" was another phrase from Frankfurter), and therefore it had to be resisted.

The law lords generally treated as self-evident (with one dissenter on this point) the distinction between the executive acting on information gathered as a result of torture and the judiciary taking such evidence into account in a criminal process. It would be absurd, Lord Nicholls of Birkenhead suggested, for the police to decline to act on information gathered as a result of torture where it might save lives—as in a ticking bomb scenario.

In such circumstances, he conceded, the executive arm of the government is open to the charge that it is condoning the use of torture, but it doesn't follow that "moral repugnance" to torture prevents a government from using information gained as a result of torture to protect its citizens.

By contrast, Lord Nicholls emphasized, the judiciary has a different function and responsibility. For Lord Nicholls (who had ruled in favor of allowing the extradition of the former Chilean dictator General Augusto Pinochet from England to Spain so that he could stand trial for torture) it was an "altogether different matter" for the judiciary to admit torture evidence when adjudicating "definitively upon the guilt or innocence of a person charged with a criminal offence."

"Repugnance to torture," he stressed, "demands that proof of facts should be found in more acceptable sources than information extracted by torture."

In recent years, English courts have regularly taken notice of international law. In line with this trend, Lord Bingham systematically considered the U.K.'s obligations under the European Convention on Human Rights (incorporated into U.K. legislation through the country's 1998 Human Rights Act) and, in particular, under the Torture Convention, which requires countries to ensure that evidence procured as a result of torture is held inadmissible in any court proceedings. But, Lord Bingham emphasized, "the principles of the common law, standing alone," required the exclusion of torture evidence—even if obtained indirectly—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."

IN REACTION TO THE RULING, Blair's Labour party government said that it had never intended to rely on or present evidence in the Special Immigration Appeals Commission that was known or believed to be obtained by torture. But the response was far from convincing to the opposition parties, who uniformly praised the decision, and even to many who generally support the government. Dominic Grieve, the Conservative party's shadow attorney general, described the judgment as "a completely correct restatement of a law that has existed for hundreds of years." Sir Menzies Campbell, the Liberal Democrat spokesman on foreign affairs, called it a "landmark judgment" and observed that judges had "once again been more effective in defending individual rights than this government." Civil rights groups, welcoming the judgment, spoke of the law lords sending out "a signal across the democratic world that there is to be no compromise on torture."

Yet what is the judgment's effect? It will require SIAC to decide whether there are reasonable grounds to suspect that torture has or may have been used to extract the evidence in the case under appeal and to exclude any evidence where it concludes, on a balance of probabilities, that torture has been used. In recent years, SIAC may have relied on information provided, for example, from interrogations conducted at Guantánamo Bay, despite evidence that conditions and methods employed by U.S. authorities there do not comply with international standards of detention. Following the law lords' judgment, such evidence may no longer be admissible.

It's not a foregone conclusion however that SIAC will throw out all, or even much, of the evidence against the eight suspected terrorists. While the panel of judges in the Torture Evidence case ruled unanimously on the principle at stake, they divided four to three on the question of what burden of proof SIAC should employ in assessing whether the key evidence against the eight was obtained through torture. Lord Bingham, supported by Lord Nicholls and Lord Hoffmann, argued that SIAC must conclude that there is not a real risk that the evidence was obtained by torture, or it must refuse to admit it. They supported a test that puts the burden of proof on the government, on grounds that the secrecy of SIAC proceedings requires it: An appellant is not allowed to know the identity of the author of a statement against him or its content, so he can't look for evidence to counter that testimony, and so the government has an easier time getting the evidence to stick. Putting the burden on the government means that there is some check on a process that's already stacked against the appellant.

But the four other law lords took a more grudging view: If it cannot be proved that the information has been or may have been obtained by torture, the information may be admitted into evidence. Putting the burden of proof on the appellants, the majority reasoned, was right because the alternative was not practical. SIAC would be dealing with information that might have been received third- or fourth-hand, so it would not be feasible to prove that each item of information came free of the taint of torture. That would require a difficult feat, proving a negative.

The law lords heard arguments in the Torture Evidence case last October, only a few months after the London suicide bombings on July 7, which killed 56 and wounded over 700. The bombings are referred to in Britain as 7/7, in a meaningful echo of 9/11. Immediately after the bombings, Prime Minister Tony Blair called for more stringent measures in tackling the terrorist threat—for changes to "the rules of the game"—and for striking the balance between individual rights and national security more often in favor of security. In the post-July 7 climate, opinion within the legal community was divided about whether the law lords would defer to the executive on matters of national security or whether they would, once again, challenge the Blair government's policies on terror, as they had done in the Belmarsh ruling in December 2004.

Taken together, the Belmarsh and Torture Evidence rulings can be viewed as part of the continuing tension between senior members of the judiciary and the executive over key elements of the Blair government's policy on terror. On an optimistic note, though, the judgments in both terrorism-related cases might be viewed as the triumph of law over policy: of the possibility of reaching a reasonable balance between the individual's rights to liberties and procedural fairness while earnestly taking into consideration concerns about security. More fundamentally, the outcomes in the cases indicate that, in the Anglo-American tradition as the law lords understand it, the judiciary is responsible for holding the executive to account. In the Torture Evidence case especially, though the law lords don't reach out explicitly to their counterparts on the United States Supreme Court and ask them to join in reaffirming the principles of liberal democracy, it's encouraging to imagine that the justices took note of the ruling.

Louise Arimatsu is on the law faculty of the London School of Economics.

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