In case you’ve missed it there’s an excellent debate on the subject of torture and its justifications or otherwise – mostly otherwise it should be said – which is well worth catching up with.

I suppose [modestly] it started here with my own take on comments by Lord Carlile; who, in addition to being a Liberal Democrat peer and QC, is also presently advising the government on its anti-terrorism legislation, before being picked up, somewhat more eloquently by Chris at Stumbling & Mumbling and has now migrated over to the Sharpener, where Jarndyce and Phil have been keeping the discussion ticking over very nicely. In between times, Tony Hatfield has also weighed in to cast his experienced legal eye over proceedings with this fascinating post, which ably demonstrates the thought processes of one particular member of the judiciary and offers considerable insight into the legal arguments which underpin this issue. This all arises directly from the SIAC case that has now reached the stage where the Law Lords have been asked for their final, definitive, ruling on the admissibility of evidence obtain through or as a result of torture [so as to be clear why this issue has come up at this time].

Re-entering the fray at this point, its towards this last mentioned post and the arguments teased out by Lord Justice Neuberger in the matter of the nature of evidence which might be obtained via the torture that I want to turn my attention to:

“The difference between the three categories [of evidence] can be demonstrated by an example involving a person suspected of having brought a dangerous chemical into the country. The first level is where the suspect admits, under torture, having brought the chemical into the country. The second is where, under torture, he admits having brought the chemical into the country, and says where he has concealed it, as a result of which the authorities find the chemical. The third level is similar to the second, save that the authorities also find the suspect’s fingerprints on the packaging of the chemical. In light of my conclusion, and the reasons for it, there are obviously very strong arguments for contending that all three categories of evidence should be excluded, even where the statement is made by a person other than the accused.

The first is a simple confession or accusation under torture, and should plainly be excluded; indeed, as I have already mentioned, the exclusion can be justified on the simple grounds of unreliability.

The second, is more difficult, because, in order for there to be good evidence against the suspect, it would be necessary not merely to disclose the finding of the chemical, but also the fact that he had told the authorities where to find the chemical, and that would involve putting before the tribunal what he had said under torture. In my view, this second category of evidence (which is, as I have already suggested, unlikely to arise where one is considering a third party statement, rather than a statement given by the suspect himself) must also be excluded, albeit only insofar as it relates to the statement. The essential point is that it does not merely involve putting evidence before the tribunal which was attributable to the fact that the suspect was tortured, but actually giving direct evidence of what he said under torture.

Real difficulty is presented by the third category, because there is no need to rely upon the evidence actually given under torture: all the prosecuting authorities need rely on is the finding of the chemical together with the suspect’s fingerprints on its packaging. There is obviously a powerful argument for saying that none of that evidence should be permitted to be adduced, on the basis that it as only obtained as a result of torture.

If the fundamental reason for excluding evidence obtained by torture is due to the revulsion on the part of the international community […] there is obviously powerful logic in the contention that the exclusion of evidence obtained by torture should apply to all evidence obtained by torture and not merely to evidence given under torture.

Despite this argument, I have come to the conclusion that what I have called the third category of evidence, namely evidence obtained as result of torture, but not involving putting before the court evidence of what was actually said under torture, is admissible.�

At first sight it might be tempting to regard this latter point, on evidence obtained ‘as a result of torture’ as something akin to legal sophistry; however, Lord Justice Neuberger is clear in his understanding of the ethical dilemma that evidence of this nature would create and, on the face of it, the demands of justice in the face of such seemingly compelling evidence would seem, as he acknowledges, to dictate that it should be admitted in evidence even allowing for the circumstances in which that evidence was obtained.

Nevertheless, and even lacking a trained legal mind and years of experience, I would still dispute his conclusion that such evidence should be thought admissible.

Taking Lord Justice Neuberger’s example, that of evidence in the form of a canister containing a dangerous chemical upon which is discovered the suspect’s fingerprints, what precisely has been established as a matter of fact by such evidence? Only that the suspect has handled, in some way, the canister itself.

Such evidence may demonstrate a clear relationship between the suspect and the evidence but not the precise nature of that relationship. If we remove for consideration the evidence obtained under torture, that the suspect was directly involved in the importation of the chemical in question and in full knowledge of the contents of the canister and its uses and purpose, can one reasonably argue that there is no reasonable explanation for the presence of the suspect’s fingerprint on the canister other than that the suspect was directly and knowingly involved in its importation?

No.

While there may be evidence which supports an assertion of direct and knowing involvement on the part of the suspect; their knowing the location in which the evidence was concealed, particularly if they have a clear association with that location – it’s in their home, their place of employment or in a location where they are the registered owner or tenant, even that does not rule out conclusively the possibility that they may, in handling the chemical, be acting merely as an unwitting dupe of a third party. They could conceivably have been transporting and/or storing the canister for a friend. They could conceivably have known nothing of its contents or, depending on how the canister is labelled, may have thought that canister contained something altogether more innocuous and not the dangerous chemical it actually did contain.

Without the support of further corroborating evidence; for example a bill of sale for the chemical in the suspects name or documents found in the suspect’s possession demonstrating knowledge of the chemical and its uses [or, of course, electronic data to same or similar effect] one has, at least, a basis to argue that there is reasonable doubt inasmuch as there is no conclusive evidence of the precise nature of the relationship between the suspect and the dangerous chemical itself…

… other than, of course, the confession obtained under torture; a confession which Lord Justice Neuberger concedes is inadmissible.

This is the logical flaw in his argument. The example given may appear to provide conclusive evidence of the suspect’s direct involvement but, in fact, does not – not without further corroboration; corroboration that may, in turn, only be available should admit the confession itself. The test itself is flawed.

Only if the chemical itself is proscribed and its use and purpose obvious can this this flaw be circumvented. If the suspect is found in possession of explosives, neurotoxins, anthrax, etc. then one can reasonably infer intent and purpose from the mere presence of the substance itself, their use being self-evident, but if the chemical in question has other applications – what then? The situation is no different to that when an unwitting gardener is found to have been cultivating a cannabis plant without knowing what it actually was or, to extend the argument further, I know of people in what was then my neighbourhood who grew opium poppies in the back garden because it was a ‘nice-looking plant’ without ever realising what the plant was or it potential uses. One particular street in that area was notorious for the fact that at the right time of year almost every front lawn would be covered in psilocybin mushrooms – none of the, mostly elderly, householders knew what they were other than they were a nuisance which spoiled the ‘look’ of their carefully maintained lawn. With ‘fresh’ magic mushrooms now classified as a class ‘A’ narcotic should we be hauling them before a court if that happens again next year? Of course not.

There are too many variables here to be satisfied with the possibilities created by Lord Justice Neuberger’s argument, too many situations in which, potentially, the case for the prosecution may rest directly on information obtained under torture even where that produces evidence which is one step removed from the information itself.

There is, however, another problem here, one which is ethically and philosophically far more troubling when juxtaposed with Lord Justice Neuberger’s argument.

If one reviews the extant treaties and conventions which deal with the matter of torture and its prohibition one cannot help but be struck by the manner in which such prohibitions are framed and by the complete absence, in the text as it relates to torture, of any of the usual qualifications, equivocations and legislative dissembling that is typically found in treaties and conventions of this kind.

Read any of the main documents, the Universal Declaration of Human Rights, the European Convention on Human Rights or the United Nations Convention against Torture and one is left in no doubt whatsoever that irrespective of how trained legal minds in various countries might wish to append their own interpretations of the text to the treaty – a good example of which can be found here in the US response to the Convention [scroll down a bit to the first section on the US] although one should not such things are entirely common place when the US deals with international treaties as it invariable goes to great and often tortuous lengths to establish the primacy of its own constitution over and above the treaty itself - the text itself exhibits the clearest possible intent on the part of its authors and sponsors that what should be put into place is the total and absolute prohibition of the use of torture in any circumstances; the prohibitions on torture exists solely to be observed and adhered to and not circumvented even if it may be expedient to do so.

That is not to suggest that, in strict jurisprudential terms, that Lord Justice Neuberger is entirely wrong in his implied assertion that there may be a little ‘wiggle room’ in the terms of International Law. If one treats the text of the Convention against Torture literally, the provision which relates directly to evidence obtained under torture would admit the possibility of his distinction in relation to evidence obtained as a result of torture, vis:

“Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.�

However such a literal interpretation is but one possible avenue within jurisprudence that the Law Lords might follow in rendering their final judgement in this matter; they may and undoubtedly will consider the case before them in other contexts including their interpretation of the intent expressed by this and other treaties in addition to that which exists in UK law, give due consideration to extant precedents in UK and European law [and possibly elsewhere - consideration of precedents set in other countries being an increasing factor in such decisions] and, of course, within the context of that which, in their view, is seen to serve best the interests of justice.

As much as there is room for legal manoeuvre in the text of article 15 of the Convention against Torture and as compelling as arguments for expediency might appear at first sight – read the article at the Sharpener which covers the problems of such an approach to this matter – I would still hold that above all the Law Lords must consider and place the greatest possible weight on the intent expressed in the Convention against Torture. If one avoids a reductionist approach which focusses exclusively on a literal interpretation of article 15 and takes, instead, a position based on the text of the entire treaty one cannot doubt that the clear purpose of this treaty is to effect an absolute and total prohibition on the use of torture and that, consequently, provisions in law such as that which might come about were the Law Lords to accept Lord Justice Neuberger’s argument, which clearly provide an incentive to make use of torture are entirely contrary to the clear principles expressed in the convention itself.

No doubt this argument, or one very similar, has been placed before the Law Lords by barristers acting for the plaintiffs in the SIAC case – and no doubt, also, they will argued it far better that I have.

Logically, one cannot have an absolute prohibition on torture if the law provides for circumstances in which such a prohibition may be circumvented in order to obtain evidence which is admissible in court, even if that evidence is not derived directly from the act of torture itself, but obtained on the basis of information obtained under torture. To rule otherwise would be to create an extremely dangerous precedent, one which validates and vindicates the practice of beating information out of suspect provided that said information leads to evidence which corroborates their guilt but which does not rely on the information obtained under torture itself.

To contextualise that last statement, even were the Law Lords to accept Lord Justice Neuberger’s argument and set exactly the precedent outlined above, we would not, as a civilised society, tolerate such conduct by our own Police or Security Services were it carried out on British soil. Were a British Police or Intelligence Officer to be found to have beaten information out of a suspect in order to obtain evidence such as that used in Lord Justice Neuberger’s example we would, quite rightly, expect that they would face the full force and penalty of the law, irrespective of the circumstances in which that officer had acted and I doubt very much that said evidence would then be considered admissible in court due to the manner in which it was obtained.

Having set such standards for ourselves, can it then be right to accept lesser standards in others when matters come before a British Court of Law?

If one compares the rules of evidence in this country with those elsewhere one will surely find a myriad of instances in which evidence which would be accepted in a foreign court would be deemed inadmissible in this country, instances in which we would never contemplate making the kind of exception that the Law Lords are now being asked to consider.

And if we wish to continue to consider ourselves a civilised society, we should make no such exception here.

UPDATE: MI5 Chief’s evidence leaked to Channel 4 - none of which alters the argument above.