Complicity

I don’t know.

You take a few days off to redesign your blog template into something altogether more spiffy and all hell breaks loose as former UK ambassador to Uzbekistan, Craig Murray, releases a number of documents, including two that the Foreign Office wanted expunged from his upcoming book, which show that concerns were raised more than two years ago about US ‘renditions’ to Uzbekistan – a country where boiling alive is considered a reasonable means of interrogating prisoners.

If you’re looking for the full ‘skinny’ on this story then look no further than Lenin’s Tomb, Bloggerheads and Blairwatch, who have all the detail you could ask for and more.

There is one little matter I want to pick up, and that relates to the advice given by Michael Wood in relation to Craig’s stated contention that it was an offence under the UN Convention Against Torture to receive information obtained by torture. This is it, here:

From: Michael Wood, Legal Advisor

Date: 13 March 2003

CC: PS/PUS; Matthew Kidd, WLD

Linda Duffield

UZBEKISTAN: INTELLIGENCE POSSIBLY OBTAINED UNDER TORTURE

1. Your record of our meeting with HMA Tashkent recorded that Craig had said that his understanding was that it was also an offence under the UN Convention on Torture to receive or possess information under torture. I said that I did not believe that this was the case, but undertook to re-read the Convention.

2. I have done so. There is nothing in the Convention to this effect. The nearest thing is article 15 which provides:

“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.”

3. This does not create any offence. I would expect that under UK law any statement established to have been made as a result of torture would not be admissible as evidence.

[signed]

M C Wood
Legal Adviser

Unfortunately Mr Wood doesn’t appear to have re-read the text of the Convention very well, otherwise he’d have noticed Article 4, which seems rather closer in meaning to Craig’s view than Article 15, which is the one which Wood cites in his advice:

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

A point which Murray makes here, in an assessment which I agree with entirely:

17. The relevant article seems to me Article 4, which talks of complicity in torture. Knowingly to receive its results appears to be at least arguable as complicity. It does not appear that being in a different country to the actual torture would preclude complicity. I talked this over in a hypothetical sense with my old friend Prof Francois Hampson, I believe an acknowledged World authority on the Convention, who said that the complicity argument and the spirit of the Convention would be likely to be winning points. I should be grateful to hear Michael’s views on this.

Of course, much depends here on how you define complicity – a matter of jurisprudence in this case as no specific definition exists in statute law.

Wood, by ignoring Article 4 entirely, appears to be discounting the possibility that knowingly receiving information obtained by torture could be considered to be complicity under Article 4 which is an all too convenient view to take when you are knowingly receiving such information. However, this ignores one of the more important tools available to the jurist in contemplating such matters, that of drawing parallels with other areas of law where notions of complicity are more clearly defined and considering how such notions may be applied to the matter under consideration.

Fortunately assistance is at hand in the form of section 117 of the Anti-terrorism, Crime and Security Act 2001 which amends the Terrorism Act 2000 as follows:

117 Information about acts of terrorism

(1) The Terrorism Act 2000 (c. 11) is amended as follows.

(2) After section 38 insert-

“38B Information about acts of terrorism

(1) This section applies where a person has information which he knows or believes might be of material assistance-

(a) in preventing the commission by another person of an act of terrorism, or

(b) in securing the apprehension, prosecution or conviction of another person, in the United Kingdom, for an offence involving the commission, preparation or instigation of an act of terrorism.

(2) The person commits an offence if he does not disclose the information as soon as reasonably practicable in accordance with subsection (3).

(3) Disclosure is in accordance with this subsection if it is made-

(a) in England and Wales, to a constable,

(b) in Scotland, to a constable, or

(c) in Northern Ireland, to a constable or a member of Her Majesty’s forces.

(4) It is a defence for a person charged with an offence under subsection (2) to prove that he had a reasonable excuse for not making the disclosure.

(5) A person guilty of an offence under this section shall be liable-

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum or to both.

(6) Proceedings for an offence under this section may be taken, and the offence may for the purposes of those proceedings be treated as having been committed, in any place where the person to be charged is or has at any time been since he first knew or believed that the information might be of material assistance as mentioned in subsection (1).”

(3) In section 39(3) (disclosure of information etc.), after “21” insert “or 38B”.

So, under these provisions is it is criminal offence, carrying a sentence of up to five years imprisonment, if you come into possession of information about the whereabouts or movements of a terrorist suspect or planned terrorist attack and you fail to disclose that information to the authorities.

In essence, if you fail to disclose such information without a ‘reasonable excuse’ then the law holds you to be an accomplice of the terrorist(s) in question.

Apply this principle to the question of complicity in torture and its seems logical that if one accepts information knowing it has been procured by use of torture then one is complicit in that torture, in which case Article 4 of CAT is most certainly applicable, as Murray suggests.

Time and again, in recent years, successive governments have fallen foul of the High Court, Law Lords and the European Court of Human Rights on matters of interpretation of Human Right laws where they have been found to have simply got it wrong in drafting legislation.

Take a look at the current and hotly contested Prevention of Terrorism Bill and you’ll find this statement on the very first page:

EUROPEAN CONVENTION ON HUMAN RIGHTS

Mr Secretary Clarke has made the following statement under section 19(1)(a) of the Human Rights Act 1998:

In my view the provisions of the Prevention of Terrorism Bill are compatible with the Convention rights.

Really? On what advice is Charles Clarke making such an extravagant claim?

Well, from the report of the Parliemtnary Joint Committee on Human Rights we can actually see the basis for this contention in respect of one of the bill’s more controversial (and now amended) clauses; the clause(s) providing for an extension of the period for which suspects may be detained without charge:

75. The Explanatory Notes to the Bill as introduced stated that the Home Office had concluded that detention under the Bill was compatible with Article 5 because further extension of detention was at the discretion of a judicial authority, and the person had to be released straight away if the reason for his detention ceases to apply.[75]

76. The written evidence we received from the Home Office in response to our call for evidence went a little further than the Explanatory Notes to the Bill. It said (in Annex A) that clauses 23 and 24 were judged to be compatible “in the absence of European Court jurisprudence on the length of time for which a person may be detained pending charge.”

This last point, on the absence of jurisprudence in the European Court relates to Article 5(2) of ECHR which states:

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

So, in other words, the government considers itself free to define ‘promptly’ as anything it likes – 90 days originally, now reduced to 28 days after a Commons rebellion – because the European Court of Human Rights has never ruled explicitly on what constitutes a reasonable definition of ‘promptly’. Is it any wonder that we have to put up with so much badly drafted legislation with attitudes like that amongst our law-makers?

More to the point, doesn’t this render everything from Michael Wood’s advice on the question of the legality of receiving information obtained by torture to the assertions of compatibility with ECHR which appear on every bill and Act of Parliament entirely meaningless?

When Ministers make their obligatory statement of compatibility on published bills what they’re saying is not that the bill really is compatible with Human Rights but rather that, so far, the European Court hasn’t said that what they’re proposing isn’t – which is no assurance of compatibility at all.

  • I like the new look! Very smart indeed.