On torture and evidence

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.

  • Katherine

    I only read as far as your comments on Lord Justice Neuberger, but I do have something to add at that point. Your argument regarding the ‘third scenario’ – ie where fingerprints are found on a canister – misses the point. Fingerprints may or may not be conclusive evidence for guilt – this would depend on the charge, on other evidence, and the view of the jury etc etc – but that is not the same as the argument surrounding whether the fingerprint should be introduced as evidence. As you said, all that would be proved is that the accused handled the canister, but arguments as to admissibility of the evidence are not the same as argument as to the strength of that evidence and what conclusions could be drawn from it.

  • Katherine

    But I agree with everything else you say.

  • Tony Hatfield

    Katherine,
    Spot on.
    It’s about admissibility.The jury must decide on strength of the evidence.
    t

  • Unity

    The point I’m trying to make in examining the strength of the evidence in Lord Justice Neuberger’s example and its relationship to the manner in which it was obtained is that his argument for admissibility is predicated on an assumption that evidence obtained as a result of torture, his third category, can be considered to exist and operate in isolation from the means by which that evidence was obtained. What I am trying to show is that that may not necessarily be the case, which in turn, casts doubts as to its admissibilty.

    The parallel here is with the US fourth amendment, which prohibits unlawful searches. If I remember correctly, this prohibition is generally extended not just to evidence procured by an illegal search but to evidence which may be obtianed as a result of such a search.

    The example here would be that a Police Officer carrys out an illegal search of a murder suspect’s home and finds a key to a locker at Grand Central Station.

    The Officer then obtains a warrant for the locker which, on examination, is found to contain the murder weapon – with the suspect’s fingerprints on it.

    In such a scenario the murder weapon would be ruled inadmissible, even though the search of the locker was conducted under a warrant, as violation of the suspect’s fourth amendment rights would invalid not only the original search but any futher actions or evidence which proceeded from it.

    In essence, if any one link in a chain of inquiry is shown to be unlawful, then the whole chain following on from that point falls as a consequence of the illegal act.

    I would strongly argue in favour of the same principle here.

  • Unity

    Tony:

    It’s just occured to me as well, if evidence obtained as a result of torture is ruled admissible but evidence appertaining directly to the torture itself is not – as seems a possibility – is there not also a question of prejudice and the potential for a challenge under ECHR article 6.

    A literalist interpretation of CAT article 15 would suggest that evidence of statements given under torture are admissible only if submitted in the course of the prosecution of an alleged torturer and not otherwise – which surely cannot be correct.

  • Tony Hatfield

    Unity,
    There’s been much debate about the “fruit from the poisoned tree in the UK.
    From what you say, I suspect in US jurisdictions such evidence would be inadmissible. That is not the case in the UK, or should I say England and Wales. There is no exclusionary rule. The court has to balance the interests of both defendant and prosecutor.
    If an arrest was unlawful,it was generally easier to get evidence arising from that act chucked out; that from an unlawful search, much, much more difficult.
    t

  • Tony Hatfield

    Unity,
    Article 6
    I’m not sure a challenge would be successful. After all the evidence that first alerted the authorities to the explosives,I argue, is not admissible.It is difficult to see how the trial process, taken as a whole,is unfair. The jury did not hear the evidence. They have not had to decide on it’s truth or otherwise.
    Or am I missing something?
    t

  • Unity

    There seem to me to be two possible article 6 objections within Lord Justice Neuberger’s example – which in reference to the SIAC case is flawed also by using a situation in which the evidence obtained as a result of torture relates directly to the suspect who was tortured; SIAC, if I’m correct, deals with evidence obtained from a third party.

    The first is the one I outlined, where the material evidence established a relationship between suspect and evidence but not the precise nature of that relationship – i.e. the suspect can be shown to have handled the chemical but not to be responsible for the procurement/transport due to lack of other corroboration.

    In such a situation, the precise nature of the suspect’s relationship can be shown only be their ststements under torture – the question being that if evidence relating to the torture itself is inadmissible (for the prosecution) does this also apply to the defence?

    It seems to me that the obvious line for the defence to take in such a situation – assuming a jury trial, which is also not a feature of the SIAC case – is to claim that the suspect was an unwitting dupe and didn’t know what they were handling and play up the fact of the torture itself.

    There seems a nasty catch 22 here in which if the defence is permitted to introduce evidence that information was obtained under torture that must prejudcie the prosecution’s case but if not it must prejudice their own.

    The more solid objection, however, must surely be the suspect’s right not to self-incriminate – even in the modified form in use to today, suspects still have the right to remain silent, a right which is absolutely violated if torture is used.

    Jurisidictional issues complicate matters somewhat – such a right may not apply expressly in the country in which the information was obtained, but a UK court must give due regard to ECHR in its proceeding and judgements, irrespective of such matters and could therefore reasoanbly hold that evidence procured as a result of torture be inadmissible on the basis that it proceeds from a situation in which article 6 rights of a suspect have been violated – in addition to the obvious article 3 issue.

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  • Unity,
    There is nothing in law or in practise to prevent the defence from calling evidence obtained under torture from a third party. In the circumstances you outline it may be relevant to one of the issues in the case.The Prosecution can try to prevent it going in using a PII application, but it’s difficult to see why it should not be admitted in the circumstances you describe. And without it the defendant’s case may be damaged. Though possibly not if the defendant faced a charge of simple posssession of the explosive.
    Once the evidence is admitted, then any Art6 objection vanishes.
    t