Over at Stumbling and Mumbling there’s a debate
over the extent, if at all, a state can use evidence that may have been obtained under torture.
Can such evidence be used as intelligence only or can a state
go one step further and use the information as evidence in criminal proceedings
against an accused person?
I’m sure their Lordships will be discussing these issues as they decide the cases of A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou - and - Secretary of State for the Home Department. (The Siac cases).
As a matter of
principle, it cannot be right that a state must reject all information that may
have been obtained under torture or ill treatment. At this stage, it’s not
important to decide on the reliability of that evidence. Let’s assume it’s
passed though the intelligence machine and it come out as reliable. Three
examples of evidence were teased out by Lord Justice Neuberger when the Siac cases
were before the Court of Appeal.
“The difference between the three categories 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 orture. 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.”
