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Article 3: Prohibition of torture
What does Article 3 say?
No one shall be subject to torture or inhuman or degrading treatment or punishment.
Does this create an absolute right which cannot be qualified in any way or derogated from in any circumstances?
What are the definitions of 'torture', 'inhuman' and 'degrading' for the purposes of the ECHR?
The ECHR itself gives no definitions: any difference, which lies in the severity of the treatment or punishment, does not matter very much as all three are banned.
- Torture is deliberate inhuman treatment causing very serious and cruel suffering.
- Inhuman treatment or punishment causes intense physical and mental suffering.
- Degrading treatment/punishment, arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance.1
Threats which are 'sufficiently real and immediate' to cause mental anguish can come within the definitions even in the absence of physical harm.2 Torture requires deliberation but inhuman or degrading treatment or punishment does not: the state's deprivation of any lawful source of sustenance can amount to inhuman or degrading treatment, as when failed asylum-seekers are deprived of any income or benefit and not allowed to work.3
In the early 1990s, Ireland successfully brought a case against the UK in relation to five techniques regularly used in Northern Ireland against detainees; 'wallstanding', 'hooding', continuous loud noise, sleep deprivation and deprivation of food and drink. The European Court of Human Rights held these were caught by Article 3, although short of torture, within inhuman or degrading treatment. The British Army then banned them. Notwithstanding this, the same techniques were deployed in Iraq by the British army. A courageous army lawyer, Lieutenant-Colonel Nicholas Mercer, objected and was eventually backed by a subsequent army inquiry that blamed lack of training on the re-emergence of such techniques.4
The Bush Administration in the United States, however, developed a programme of 'enhanced interrogation techniques' that may yet lead to prosecutions of the senior officials involved (see below).5 There are allegations in the case of Binyam Mohammed that UK officials were complicit in his torture.6
Has the UK signed any other international conventions on torture?
Yes: the UN International Commission on Civil and Political Rights. After a similar general prohibition to Article 3 of the ECHR, there is an additional commitment:
In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
More specifically, the UK has also signed and ratified the UN Convention against Torture and other Cruel of Inhuman, Degrading Treatment or Punishment. This entered into force on 26th June 1987. A Committee against Torture is established under the Convention and can investigate allegations by individuals and other states against those countries that have agreed to be so bound. The definition of torture under this Convention is slightly different from that in the ECHR:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Does the prohibition on torture have a long history in the UK?
It certainly does. A number of the judges in the key case of A and others v Secretary of State for the Home Department7 give learned and interesting explanations of the development of a ban on torture in common law. There has been no lawfully sanctioned torture in England and Wales since 1640 and in Scotland since 1708. The Bill of Rights 1689 banned the infliction of 'cruel and unusual punishment'.
Is torture an offence in the UK?
Yes, if undertaken by a public official, whether or not a UK citizen or whether or not the torture was carried out in the UK. Section 134 of the Criminal Justice Act 1988 provides:8
(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.
(2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if-
(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence-
(i) of a public official; or
(ii) of a person acting in an official capacity; and
(b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.
Faryadi Zardad, an extremely unpleasant Afghan warlord, became the first person to be convicted on the basis of the universal jurisdiction introduced by these provisions in 2005. The High Court accepted that he was de facto a public official. Zardad had been found living in Streatham, having entered the UK under a false passport.9
Is evidence that has been obtained by torture or ill-treatment excluded in criminal trials?
Yes. Section 76 (2) Police and Criminal Evidence Act 1984 repeats the common law rule and excludes any confession obtained 'by oppression ... or in consequence of anything said or done which was likely .. to render [it] unreliable'. To prevent such abuse, a duty solicitor scheme provides assistance for police interviews and these are now invariably taped by the police. Nevertheless, abuse can still occur. On hearing the tape of an interview at which a solicitor had been present, the then Lord Chief Justice commented: 'Short of physical violence, it is hard to conceive of a more hostile or intimidating approach'. The defendant (one of the 'Cardiff Three') had denied a charge of murder 300 times before eventually confessing; forensic evidence subsequently proved that another person had committed the murder.10
Is evidence obtained by torture or ill-treatment excluded in civil cases?
Yes, as a result of A and others v Secretary of State for the Home Department, mentioned above. However, the court held that 'the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of evidence which I shall for convenience call torture evidence'11 In addition, a majority of the House of Lords held that a court or tribunal should assume that evidence has not been obtained by torture unless convinced, on the balance of probabilities, to the contrary.
Can a person, even someone who is a foreign national and considered a risk to national security, be deported, extradited or otherwise sent to a country where there is a reasonable risk that they will be tortured?
Is the UK government happy with that?
No. It intervened in a recent case at the European Court of Human Rights in order to argue that national security was a relevant consideration and lost. The court also made it clear that no government could simply rely on assurances that someone would not be tortured or ill-treated: that was a judgement to be made on the facts of every individual case.13 The House of Lords has recently accepted rulings by the Special Immigration Appeals Commission that the UK government could rely on diplomatic assurances that two men - suspected of terrorism - would not be ill-treated upon return and thus held lawful the deportation of those men to Algeria and Jordan.14 By contrast, the Court of Appeal has held that diplomatice assurances were not enough in relation to Libya.15
What about the US?
The US is not, of course, a party to the ECHR. It entered a specific reservation to the UN Convention against Torture that limited effect of the Convention to the provisions in the US Constitution:16
The United States considers itself bound by the obligation ... to prevent 'cruel, inhuman or degrading treatment or punishment', only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.
The effect of the constitutional requirements became a contested issue in which the administration of George W Bush took a very narrow view. Most controversially, the process of simulated drowning was authorised at the highest points of the administration and apparently practised widely by US officials. The US also developed a programme of 'extraordinary rendition' in which it arrested - or caused the arrest - of people in one country and sent them to another for interrogation. Sweden was criticised by the Committee against Torture for allowing the US to move a terror suspect from Sweden to Egypt where he alleged he was tortured.17 President Obama has accepted that 'waterboarding' is torture: his administration is still considering its policy towards those who authorised it. President Obama has said that he will not prosecute agents who operated in good faith on the basis of advice from above.
1 Ireland v UK (1978) 2 EHRR 25
2 Campbell and Cosans v UK (1982) 4 EHRR 293
3 Limbuela v Secretary of State for the Home Department (2005) UKHL 66
5 http://www.nytimes.com/2009/04/22/us/politics/22detain.html?_r=1&scp=7&sq=waterboarding&st=cse See also P Sands, The Torture Team, (Penguin 2008).
7 A and others v the Secretary of State for the Home Department  UKHL 71. See also Lord Hope of Craighead, 'Torture', University of Essex/Clifford Chance lecture, 2004.
8 S134 Criminal Justice Act 1988
11 See n7 per Lord Bingham, para 47.