Test case for torture memoranda

The Special Immigration Appeals Commission (SIAC) in London has begun hearing a case that could have significant repercussions for the UK Government's as yet untested policy of signing "memoranda of understanding" with certain states that any deported individuals will not be subject to torture or cruel, inhuman or degrading treatment on their return. Lawyers for the suspected terrorist Abu Qatada have argued that the ECHR prevents his deportation to Jordan, and that the memorandum of understanding between the Governments of Jordan and the UK provides an insufficient guarantee of safety to override the human rights protections.

I have already suggested that these memoranda also raise siginficant questions of international law - the Torture Convention, in its Article 3, is quite clear in its prohibition of non-refoulement, whilst the Human Rights Committee, in its General Comment 31, has found that the ICCPR also places on states "an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm..."(para. 12). It remains to be seen whether international legal considerations will play a role in the case in question; perhaps not, as the ECHR seems to cover the same ground, and is capable of providing more immediate "hard" justification in domestic courts.

The European Court of Human Rights has dealt with the sufficiency of diplomatic assurances (which is essentially what memoranda of understanding are) for overcoming the human rights protections against non-refoulement. In the case of Chahal v. UK in 1996, the Court held, at paras 104-105, that diplomatic assurances from India that a deportee would not be subject to torture on his return were insufficient to allow the UK Government to deport him. It would, however, be a mistake to draw too general conclusions from this alone; the Court's reasoning is formulated in terms of the particular situation prevailing in India at the time, and not in those of a general or abstract ruling on diplomatic assurances. Moreover, the decision is based not on the bona fides of the Indian Government (which the Court does not doubt), but rather on the degree of control it could exercise over the treatment of the deportee upon his return. There are obviously significant differences between this and the Qatada case, in which it is the Jordanian Government itself that stands suspected of torture. Any finding that the memorandum of understanding is insufficient in this case must either be based upon a generalised rule relating to diplomatic assurances, or call the bona fides of the Jordanian Government directly into question.

Talking of which, the case is interesting for another reason: Abu Qatada alleges that the evidence being used against him was obtained through the torture of one of his associates by the United States. The UK Courts have already ruled, much to the chagrin of the Government, that such evidence is, in principle, inadmissible - in a judgment that contained a detailed analysis, not only of the European Convention of Human Rights, but also the relevant public international law, and, in particular, the Torture Convention. Of particular interest here is not merely the finding that such evidence was inadmissable, but also what was said in terms of the burden of proof of such an allegation. Noting that the "conventional approach" was not appropriate given that, inter alia, the appellant may not know the author of any statements against him, or, indeed, what such statements alleged (para. 55), the Court concluded that it "would place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge" (para. 80), thus nullifying the principle, "vigorously supported on all sides" that evidence obtained from torture was inadmissable. The Court went on to state, at para. 56, that

The appellant must ordinarily, by himself or his special advocate, advance some plausible reason why evidence may have been procured by torture. This will often be done by showing that evidence has, or is likely to have, come from one of those countries widely known or believed to practise torture (although they may well be parties to the Torture Convention and will, no doubt, disavow the practice publicly). Where such a plausible reason is given, or where SIAC with its knowledge and expertise in this field knows or suspects that evidence may have come from such a country, it is for SIAC to initiate or direct such inquiry as is necessary to enable it to form a fair judgment whether the evidence has... obtained by torture or not.

The Court agreed on this general point - that all the accused had to do was raise the possibility of torture by some plausible reason - but disagreed over whether the burden of proof on the issue should then be positive or negative. The minority argued that, where there was a real risk that evidence had been gained from torture, then the burden of proof fell on the state to show that it had not. The majority, however, felt that this threshold was too high, and did not represent a fair balance between the right to be free from torture and the right to life of terrorist victims, as it would often present an insuperable barrier to securing terrorism convictions (para. 119).

Much, then, will depend upon the judgment of the SIAC as to whether the practices of the US in dealing with its terror suspects, in Guantanamo and elsewhere. Of course, rightly or wrongly, they will also be influenced by their impression of Qatada in general - and the same Court has already, in a separate judgment, called him "a dangerous individual" who "was heavily involved, indeed at the centre in the United Kingdom of terrorist activites associated with Al Qaeda". If, however, there is any suspicion that the US will automatically be regarded as a state in which torture is not practiced, it must be dispelled immediately. Consider the following passage from Lord Hope of Craighead, one of the majority judges in the case (para. 126):

Views as to where the line is to be drawn may differ sharply from state to state. This can be seen from the list of practices authorised for use in Guantanamo Bay by the US authorities, some of which would shock the conscience if they were ever to be authorised for use in our own country. SIAC must exercise its own judgment in addressing this issue, which is ultimately one of fact. It should not be deterred from treating conduct as torture by the fact that other states do not attach the same label to it. The standard that it should apply is that which we would wish to apply in our own time to our own citizens.

This clearly states that practices that the US views as acceptable need not, indeed will not, be regarded in the same light in the UK. Perhaps even more striking in this regard, however, are the recent comments from Mr. Justice Collins, a High Court Judge, who, in startlingly strong language, noted that "America's idea of what is torture is not the same as ours and does not appear to coincide with that of most civilised nations". A direct finding from the UK courts that the US is guilty of torture, as seems a distinct possibility in this case, would certainly introduce an interesting dynamic into UK-US relations. And it is increasingly difficult to shake off the impression that the British judiciary has been simply itching to flex its muscles and make its voice heard on this issue by rendering a formal judgment to that effect.

Whatever the outcome, this case is undoubtedly one to watch...