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.