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Evidence gained by torture allowed by British judges

London Independent | August 11 2004

The use of torture to obtain evidence against suspected terrorists was endorsed yesterday by the Court of Appeal in a ruling that has brought Britain into conflict with international human rights campaigners.

Two of the country's senior judges granted the Home Secretary the right to hold terror suspects on the basis of intelligence from tortured prisoners at Guantanamo Bay and other US detention camps.

Human rights groups and experts on international law said Britain had, in effect, been given the green light to trawl for evidence from torture victims across the world.

The controversial guidance emerged in the court's decision to reject appeals from 10 foreign nationals held for more than two years without charge or trial in British prisons under emergency terror laws introduced by David Blunkett after the 11 September attacks.

None of the men is accused of terrorist acts, only that they belong to banned terrorist organisations. Two of the 10 have voluntarily left Britain and are bringing their appeals from abroad. But Mr Blunkett, writing in today's Independent, says yesterday's judgment on the fate of the detainees is a clear vindication of his policy on terrorism. "As Home Secretary. I must balance legal theory with the practical job of protecting people," he says.

In yesterday's ruling, Lord Justice Laws and Lord Justice Pill upheld the decision of the special immigration appeals commission to authorise the detention of the suspects, although it was alleged the only evidence against them came from men tortured by American security officers at Guantanamo Bay in Cuba or Bagram air base in Afghanistan. In a 190-page judgment, Lord Justice Laws said he was "quite unable" to see why the Home Secretary could not rely on evidence "coming into his hands which has or may have been obtained through torture by agencies of other States over which he has no power of direction".

The judge added: "If he has neither procured the torture nor connived at it, he has not offended the constitutional principle which I have sought to outline." He said he could not believe "that the law should sensibly impose on the Secretary of State a duty of solemn inquiry as to the interrogation methods used by agencies of other sovereign states".

But in the two-to-one judgment, the dissenting judge, Lord Justice Neuberger, warned that by "adopting the fruits of torture" Britain would be weakening its case against terrorists.

All three judges said there was no evidence to show that any intelligence had been gathered from victims of torture, only that this had been alleged by the men's lawyers.

The men's solicitor, Gareth Peirce, described as "terrifying" the suggestion in the judgment that evidence obtained through torture could be admissible. "It shows that we have completely lost our way in this country legally and morally," she said. "We have international treaty obligations which prevent the use of evidence obtained by torture in any proceedings."

Shami Chakrabati, director of the human rights group Liberty, said the effect of the judgment would encourage the police and security services to adopt a policy of "hear no evil, see no evil".

She said: "As long as the Home Secretary does not inquire into how the information was obtained he can use it in any way he wishes. This would surely make Britain complicit in international acts of torture." Kate Allen, director of Amnesty International in the UK said she was appalled. "The rule of law and human rights have become casualties of the measures taken in the aftermath of 9/11. This judgment is an aberration, morally and legally."

Peter Carter QC, chairman of the Bar's human rights committee, said the ruling meant the Government was being allowed to "connive in torture". He added: "Under international law there is an absolute prohibition on torture. This is not just because it is an inhumane act but because of the rationale that the fruits of torture are very likely to be wholly unreliable and so it is irrational to rely on information obtained by torture."

Lord Justice Neuberger said that "democratic societies, faced with terrorist threats, should not readily accept that the threat justifies the use of torture, or that the end justifies the means. It can be said that, by using torture, or even by adopting the fruits of torture, a democratic state is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys."