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Torture: A history of hypocrisy

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We do not torture people, say the British authorities. In 2010 the former prime minister said so in February. The same year the Foreign Office said so in May. They have repeated it in April 2012 in the context of the extraordinary rendition cases: “The UK government’s policy is clear: we do not participate in, solicit, encourage or condone the use of torture or cruel, inhuman and degrading treatment or punishment for any purpose. We have consistently made clear our absolute opposition to such behaviour and our determination to combat it wherever and whenever it occurs.”

The Consolidated Guidance to Intelligence Officers on interviewing detainees uses the same standard formula: “We do not participate in, solicit, encourage or condone the use of torture or cruel, inhuman or degrading treatment or punishment for any purpose”.

The head of MI6, Sir John Sawers, has said so: “We have nothing whatsoever to do with [torture]”.

We know in our hearts that we do not torture. It is something that is deeply etched on our collective psyche, part of our ancient legal tradition and an essential feature of our British values.

Indeed, so clear are we that we do not torture that we did not feel it necessary to abolish torture until 1988 – as a result of obligations under international human rights law.

Throughout the age of enlightenment and the age of Victorian moral values and the age of democracy we have known that we do not torture. Parliamentarians didn’t think to demand abolition of torture in the Petition of Right in 1628 – in large part because torture didn’t happen to them.

“There is no law to warrant tortures in this land,” declared the jurist Sir Edward Coke in his Institutes of the Laws of England (1644). That was the same Sir Edward Coke who in his earlier career as attorney general happily accepted torture warrants, for example in a case of rioters in 1596, who were to be “put to the manacles and torture that they may be constrained thereby to utter the whole truth of their mischievous devyses and purposes”.

In the canons of law, a later jurist, Sir William Blackstone, is also seen as asserting the illegality of torture, declaring in 1769 that “the trial by rack is utterly unknown to the law of England”. In reality he was talking of a specific legal procedure under continental “civil law”. Racking was a trial in itself, not a means of gaining information.

We didn’t do that. What we used to do for suspects who refused to plead in court was take them to a dungeon and press them under a weight of iron until they did plead – guilty for preference, though not guilty was also an option for hardier souls. That was banned in 1772.

Helpfully Blackstone notes that there was a rack in the Tower of London, built on the orders of Henry IV and “occasionally used as an engine of state, not of law”. He is talking about the difference between royal prerogative and common law. The distinction is subtle and would probably be lost on the poor wretch whose limbs were being slowly ripped from their sockets.

The 1987 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment asserts that states should have a law against torture. Hence Britain eventually got its unequivocal ban in the Criminal Justice Act 1988.

It’s there among the miscellaneous provisions: “A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.”

That’s clear enough – but there is a defence if the perpetrator has “lawful authority, justification or excuse”. This is the argument our own Jack Bauers might put: “I was only saving democracy and the British way of life…”

The 1988 law did not stop the government seeking to use foreign “third party” torture evidence in courts. The matter came before the House of Lords (now Supreme Court) in the case known (for short) as A and others v Home Secretary, in 2005.

The government wanted to know whether it could present such torture evidence at appeals for the release of people detained on suspicion of links with terrorism. The House of Lords said very clearly that it could not, and Lord Bingham’s strongly argued ruling on this is justly admired.

However, he went on to say (at paragraph 47): “I am prepared to accept … that the secretary of state does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence.”

This muddies some already pretty turbid waters. If third party torture evidence can be acted on, even to the extent of holding people without trial in Britain, that opens the possibility of actively seeking out such evidence – since it is most unlikely that our agents abroad will simply stumble over it as they happen to wander around the torture hotspots of the world.

That was the dilemma facing Sir John. As he puts it: “We can’t do our job if we work only with friendly democracies. Dangerous threats usually come from dangerous people in dangerous places. We have to deal with the world as it is.”

No wonder, then, that we are finding ourselves in difficulties on the question of torture. No wonder we are so confused and equivocal about it – almost to the point of existing in a state of chronic hypocrisy. It is something that is deeply etched on our collective psyche, part of our ancient legal tradition and an essential feature of our British values.

We don’t torture people. We have other chaps to do that sort of thing for us.

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About alrich

Journalist and blogger on legal and financial/economics issues

3 responses »

  1. Pingback: Lord Bingham: the rule of law or bending the rule of law? « Alrich Blog

  2. Pingback: Lord Judge-made law – without the ECHR bits | Alrich Blog

  3. Pingback: 1297 And All That: how to impress a Brexit judge | AL's LAW

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