Torture is illegal, right?
Yes. The use of torture has been contrary to common law for several centuries, and the UK was well ahead of many other European jurisdictions in abolishing its use. Although the common law prohibited torture, however, the Privy Council continued to issue torture warrants until Felton’s case in 1628 and it was not until the Long Parliament in 1640 that the practice was formally abolished. In Scotland, torture was prohibited by section 5 Treason Act 1708.
In addition to the established common law provisions, section 134 Criminal Justice Act 1988 makes it an offence for any public official to ‘intentionally inflict severe pain or suffering on another in the perfomance … of his official duties’. This provision was introduced to honour the UK’s commitments under the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention).
Under international law, torture is not only prohibited under such instruments as Article 3 of the European Convention on Human Rights (ECHR) and the Torture Convention, but it has become recognised as ius cogens, a preemptory norm of international law that binds all states whether they have signed instruments such as the Torture Convention or not.((See eg Prosecutor v Furundzija [1998] ICTY 3, 10 December 1998, paragraphs 147-157)) The prohibition against torture under Article 3 ECHR is also one of the few rights that cannot be derogated from in a state of emergency under Article 15.
Torture is something that only happens in other countries. Why is it a human rights issue in the UK?
For several reasons.
First, the various international instruments prohibiting torture not only make it unlawful for UK officials to commit torture but also forbid, for example, the UK sending people to countries where they face a real risk of torture. Although the government maintains that it would never return someone to a country where they face a risk of torture, the Human Rights Act 1998 is regularly relied upon in extradition and deportation cases to challenge the government’s assessment of whether a risk of ill-treatment exists. Even more controversial is the UK government’s negotiation of Memoranda of Understanding (MoUs) with countries such as Jordan and Libya, in order to deport suspects to countries where torture is known to be used. JUSTICE and Human Rights Watch are jointly intervening in the case of Secretary of State for the Home Department v OO in the House of Lords at the end of October to argue that MoUs cannot safely be relied upon.
Secondly, UK cooperation with other countries in the field of counter-terrorism and the UK involvement with the ‘War on Terror’ has raised serious questions about whether decisions about deportations and control orders have been based partly on evidence gathered under torture in other countries, including the ‘enhanced interrogation techniques’ used by US officials at Guantanamo Bay and elsewhere.((See eg Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House 105 Columbia Law Review 1681-1750 October, 2005; Phillipe Sands, Torture Team, Penguin, 2008)) This was the key issue in the famous ‘Torture Evidence’ case (A and others v Secretary of State for the Home Department (No 2)) in 2005.(([2005] UKHL 71)) In some cases, there have even been claims that UK officials were present during interrogations in other countries in which torture was used, most recently in the Binyam Mohammed case in the High Court in August.(([2008] EWHC 2048 (Admin)))
Thirdly, the conduct of the UK forces themselves, in particular the treatment of prisoners and the death of Baha Mousa, has highlighted defects in the guidance given to British soldiers concerning the proper treatment of detainees. Particularly striking is the apparent failure of the army to draw soldiers’ attention to the 1972 army directive prohibiting the ‘five techniques’ that were held by the European Court of Human Rights to breach Article 3 in Ireland v UK.(((1978) 2 EHRR 25))
Fourthly, there is an issue about the jurisdiction of British courts to punish torturers and provide redress to victims. Although the Pinochet case in 1999 established that foreign heads of state could not claim immunity from prosecution, and the 2005 prosecution of an Afghan warlord in the Old Bailey showed the ability to exercise universal jurisdiction for torture in criminal cases, the doctrine of state immunity in civil cases has still prevented many victims of torture from suing foreign governments in British courts to obtain redress against their torturers. ((Ron Jones v Saudi Arabia [2006] UKHL 26)) A private members bill is currently before Parliament to create an exception to allow such civil actions to proceed.
Fifthly, the scope of Article 3 ECHR extends more broadly than torture of detainees. Although torture is clearly outlawed in the UK, the concept of inhuman and degrading treatment has clear relevance to how detainees are treated in prisons, asylum detention centres, mental health facilities and youth detention centres. For example, the High Court recently warned that guidance on the use of ‘pain compliance techniques’ used on young people in secure training centres may be contrary to Article 3 ECHR.((C (A Minor) v Secretary of State for Justice [2008] EWHC 171 (Admin)))
What’s the difference between torture and inhuman and degrading treatment?
The difference lies in the severity of the ill-treatment. Electrocuting a detainee, for instance, is plainly and obviously torture. By contrast, preventing a detainee from sleeping by use of bright lights and loud noises might not be sufficiently severe to qualify as torture, but it would likely qualify as inhuman treatment. In both cases, torture can be physical or non-physical (eg staging the execution of a family member).
The exact threshold is relative but in both cases, the ill-treatment must go beyond the ‘inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment’.((Labita v Italy (ECtHR, 6 April 2000), paragraph 120)) The European Court of Human Rights has also made clear that the distinction ‘depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim’.((Selmouni v France (1999) 29 EHRR 403, paragraph 100))
Note also that the inhuman or degrading treatment need not be intentional, i.e. the state need not intend to cause pain and suffering in order for the conduct to breach Article 3 ECHR((See eg Pretty v United Kingdom (2002) 35 EHRR 1)), eg the government’s failure to provide support to destitute asylum seekers under section 55 Nationality Immigration and Asylum Act 2002.((R (Limbuela) v Secretary of State for the Home Department (2005) UKHL 56))
Why does it matter?
The Torture Convention prohibits both torture, on the one hand, and inhuman and degrading treatment, on the other. However, its provisions sometimes draw a distinction, so that the UK government has – for instance – sometimes argued that the bar against returning a suspect to a risk of ‘lesser’ kinds of ill-treatment is not as absolute as the bar against returning a suspect to torture.
Article 3 of the European Convention on Human Rights prohibits both torture and inhuman and degrading treatment equally, however. In Saadi v Italy, for instance, the Grand Chamber of the European Court of Human Rights rejected the UK government’s argument that a lesser degree of protection applied where the suspect is a risk to national security, noting that ‘such an approach is not compatible with the absolute nature of the protection afforded by Article 3’. Since Article 3 is directly enforceable in UK courts under section 6 Human Rights Act, it is likely that the exact distinction is less relevant in UK law.
Where can I get more information?