Thrusting itself into the middle of a stormy international debate, Britain’s highest court declared today that evidence obtained through torture – no matter who had done the torturing – was not admissible in British courts. It also said that Britain had a “positive obligation” to uphold anti-torture principles abroad as well as at home.
“The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court, irrespective of where, or by whom, or on whose authority the torture was inflected,” said Lord Bingham, writing the lead opinion for the Law Lords, roughly equivalent to the United States Supreme Court. “To that question I would give a very clear negative answer.”
The ruling dealt specifically with the case of 10 men who were detained and held without charge in Britain on suspicion of being terrorists after the Sept. 11, 2001, attacks on the United States. But while the question at hand applied only to English law, several of the lords explicitly referred – not at all flatteringly – to the standards of evidence applied in the United States in the fight against terror.
Speaking of English national pride in its common-law rejection centuries ago of torture as a means to an end, Lord Hoffman brought his argument forward to the current era.
“In our own century,” he wrote, “many people in the United States, heirs to that common-law tradition, have felt their country dishonored by its use of torture outside the jurisdiction and its practice of extra-legal ‘rendition’ of suspects to countries where they would be tortured.”
Human-rights groups applauded the ruling as a landmark decision that set out a civilized blueprint for how the courts of England should conduct themselves in terror cases.
“The Law Lords’ ruling has overturned the tacit belief that torture can be condoned under certain circumstances,” Amnesty International said in a statement. “This ruling shred any vestige of legality with which the U.K. government had attempted to defend a completely unlawful and reprehensible policy, introduced as part of its counter-terrorism measures.”
It was unclear today what practical effect the ruling would have. Human-rights groups who had brought the case said that it would force the government to do three things: re-evaluate any pending or future terrorism cases to determine explicitly that evidence had not been extracted by torture; stop seeking to deport terror suspects to countries where they might be tortured; and investigate the possible the use of British airspace and airports by the United States in transporting terror suspects to countries where torture may be used.
But in a statement, the British home secretary, Charles Clarke, said that the ruling would have no substantive effect on the 10 terror suspects whose cases were at issue. Nor, he said, would the lords’ judgment have any bearing on the government’s anti-terrorism policies.
“The government has always made it clear that we do not condone torture in any way, nor would we carry out this completely unacceptable behavior or encourage others to do so,” Mr. Clarke said.
The 10 men are known informally as the Belmarsh detainees, after the prison where many of them were held. Last year, a lower court ruled that evidence against them that may have been obtained under torture in other countries was usable in English courts and that the government had no obligation to ask how the evidence had been gathered.
In strong language that referred to centuries of English law and also to the moral weight of international treaties and obligations, a seven-member panel of the Law Lords struck down that decision.
“The principles of the common law, standing alone, in my opinion compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice,” Lord Bingham wrote.
