Justifying torture

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.”

Comments

[brendan stallard]

Tony,

On torture.......I am certain we will disagree on this issue, but I believe that under certain circumstances extracting information from arrested subjects is acceptable.

I would not use torture, but there are drugs available that would get the job done.

I think the "rules of engagement" need to be firmly set and agreed internationally.

But yes, for certain hostage situations I would support enforced information extraction.

Heaven alone knows where that puts me in the pantheon of revility, but I'll live with it if I can save someone.

brendan

[Tony Hatfield]

There may be a confusion in definitions here. Torture must include some element of pain or suffering.The UN Convention on Torture etc defines it as:
"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
And that certainly reflects European jurisprudence on the subject.

t

[brendan stallard]

Tony,

So, where do you stand on the issue. If a loved one of yours was kidnapped?

Tony adds:

Of course, I'd want his finger nails ripped out to get at the information. Though there is much evidence to show that the information I would get may be unreliable.
But happily, I would be the last person to ask what to do. The law does not allow torture. end of story.
And of course if we did use it, it would be difficult to complain when, not if, a soldier was captured in Iraq or Afghanistan, suffered the same fate. We would be on the road to hell.

[Jarndyce]

_for certain hostage situations I would support enforced information extraction_

So, if US Marines were captured in Afghanistan, you'd be happy for them to undergo "enforced information extraction" relating to time they may have served at Guantanamo? I'd echo Tony's point: the law does not allow torture. Neither should it. We already have internationally agreed rules of engagement on this. The question, of course, is how to enforce them, and not just for the goose...

[Phil]

There's a further point here, which these thought-experiments always tend to elide, predicated as they are on the worst-case scenario for opponents of torture (good data produced by bad methods). In reality, evidence produced through torture is highly unlikely to be good evidence - both because we know in principle that people will say anything to make it stop, and because we know from experience that most regimes using torture do it primarily to break their prisoners. This matters because there's no way of telling whether you've got good (category-3) data without verifying it - in other words, without provisionally accepting it as good. If it's a matter of sending a couple of chaps down to the docks on the strength of a tipoff which arrived on blood-stained paper, the worst that can happen is that some police time will be wasted. But in practice it's far more likely that the evidence supplied by the unfortunate person being tortured will consist of the names of his contacts and accomplices - in which case verifying the data is likely to involve 28 days in clink for someone who, in all likelihood, hasn't done anything.

As I said when I was debating this with Jarndyce elsewhere, there's an argument from principle against torture, but there's also an argument from practicality: admitting torture evidence is, almost by definition, a good way of getting a lot of innocent collars felt.