COMMITTEE AGAINST TORTURE BEGINS REVIEW OF FOURTH PERIODIC REPORT OF UNITED KINGDOM

17 November 2004


The Committee against Torture this morning began its consideration of the fourth periodic report of the United Kingdom on its efforts to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Jonathan Spencer, Director General of Clients and Policy in the United Kingdom Department of Constitutional Affairs, said the United Kingdom unreservedly condemned the use of torture and continued to work with its international partners, in particular the United Nations, to combat torture wherever and whenever it occurred. The United Kingdom regarded torture as an affront to and a denial of the inherent dignity and right to respect which was the inalienable birthright of every human being.

Martin Howard, the Director General for Operational Policy in the United Kingdom Ministry of Defence, speaking on the conduct of United Kingdom Armed Forces abroad, noted that all British military personnel deploying to Iraq and elsewhere were briefed that prisoners, detainees and civilians must be treated with dignity and respect, and must not in any way be subject to abuse, torture, inhuman or degrading treatment. He added that in terms of the operations of the United Kingdom Armed Forces, the implementation of the Convention applied regardless of the territory in which they were operating.

Serving as Rapporteur for the report of the United Kingdom was Committee Expert Felice Gaer, who complimented the delegation for its well-written responses to the extensive range of issues put forth by the Committee. She also congratulated the Government of the United Kingdom for its ratification of the Optional Protocol to the Convention. She asked a series of questions on subjects including the application of the Convention in overseas operations, asylum seekers and the State party’s terrorism legislation.

Fernando Marino Menendez, the Committee Expert serving as Co-Rapporteur for the report, asked for additional information on the application of the principle of non-refoulment to prisoners held in Iraq, on the use of evidence possibly obtained by means of torture, and for information on which governmental body in the United Kingdom was tasked with implementing the Optional Protocol to the Convention.

Other Committee Experts raised questions on issues pertaining to, among other things, reports of abuse committed against Iraqi civilians and the investigations undertaken, whether the State party envisaged incorporating the Convention into domestic law, the process of the review of claims by asylum seekers, and deaths of detainees in police custody.

Also representing the United Kingdom were representatives of the Department for Constitutional Affairs, the Ministry of Defence, the Office of Prison Services, the Scottish Executive Office, the Foreign and Commonwealth Office, the Immigration and Nationality Directorate, the Northern Ireland Office and the Permanent Missions to the Isle of Man and Anguilla.

The delegation will return to the Committee at 3 p.m. on Thursday, 18 November to provide additional responses to the Committee.

The United Kingdom is among the 138 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 4 p.m. this afternoon, it will continue its consideration of the fourth periodic report of Argentina.

Report of the United Kingdom

The fourth periodic report of the United Kingdom (CAT/C/67/Add.2) refers to the Criminal Justice Act of 1988, under which torture is an offence in the United Kingdom, and the Human Rights Act of 1998, which came into force in October 2000, and states that no one shall be subjected to torture or inhuman or degrading treatment or punishment. Under the Human Rights Act, it is unlawful for any public authority to act in a way incompatible with the rights in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Against any such act, the Act provides a new cause for legal action and remedy. The Criminal Justice Act of 1988 has a broader definition of torture than the Convention, the report states, and includes all severe pain or suffering inflicted in the performance of official duties. In response to the events of 11 September 2001, the Anti-Terrorism, Crime and Security (ATCS) Act was passed to deal with the problem of suspected international terrorists who, as foreign nationals, could not be returned to their home countries because of the prohibition on removal of a person who would face torture, or because of practical difficulties, such as war or serious instability in their home country.

In an effort to provide prison doctors with practical guidance “Good Medical Practice for Doctors Providing Primary Care Services in Prisons” was published in January 2003, the report states. In all parts of the United Kingdom, anyone subject to questioning by the police or attending a police station voluntarily has the right to consult a legal adviser and, as a general rule, to have a legal adviser present during the interview. These rights are set out in the Code of Practice for the detention, treatment and questioning of persons by police officers.

The Home Office Police Research Group, which is independent of the police, has made a study into the causes of death in police custody. Its report, published in July 1998, found, among other things, that there were on average three deaths per 100,000 arrests and that more than 90 per cent of deaths were related to the actions of the detainees or to their medical conditions. It also found that deaths associated with officers’ actions were very rare (16 in 11.8 million arrests). All deaths in police custody are referred to the Police Complaints Authority (PCA) and are subject to a public inquest to see what lessons can be learned. If an allegation is made against a police officer there is an internal investigation supervised by the PCA. In England and Wales, all deaths in prison custody are the subject of an internal investigation conducted by a Senior Investigating Officer.

Presentation of Report

JONATHAN SPENCER, Director General of Clients and Policy in the United Kingdom Department of Constitutional Affairs, said the United Kingdom regarded its continuing relationship with the Committee as positive and productive. The Committee had raised an extremely important range of issues on which the delegation was glad to respond. Mr. Spencer said he realized that the Committee was seriously concerned about aspects of the United Kingdom’s involvement in Iraq and Afghanistan and that was one of the reasons why it had decided to bring forward this examination. The intention of the Government of the United Kingdom had been that its actions in both countries should be strictly in accordance with international law, and in particular the Convention against Torture. The Government strongly believed that it had fulfilled that intention, the head of the delegation added.

The United Kingdom unreservedly condemned the use of torture and continued to work with its international partners, in particular the United Nations, to combat torture wherever and whenever it occurred. The United Kingdom regarded torture as an affront to and a denial of the inherent dignity and right to respect which was the inalienable birthright of every human being. It was a crime against humanity which degraded the victim and debased and corrupted the torturer.

The United Kingdom ratified the Convention against Torture on 8 December 1988, and it took effect on 7 January 1989. The United Kingdom also ratified the European Convention for the Prevention of Torture on 24 June 1988, and that treaty came into force in the United Kingdom on 1 February 1989. Moreover, on 10 December 2003, the United Kingdom ratified the Optional Protocol to the Convention, the third country in the world to do so. The United Kingdom pursued the worldwide abolition of torture through diplomatic activity, practical projects and funding for research.

One of the effects of Section 134 of the Criminal Justice Act was that all torture, wherever committed worldwide, was made criminal in the United Kingdom. The first actual prosecution under this legal provision was currently underway in the United Kingdom involving an Afghan national. It was believed that this was the first time in the world that a foreign national had been tried on charges relating to torture of victims who were also foreign nationals.

Turning to the subject of detentions under anti-terrorism legislation passed in the United Kingdom following the attacks in New York and Washington in September 2001, Mr. Spencer said the Anti-terrorism, Crime and Security (ACTS) Act of 2001 introduced exceptional powers to counter the risks posed by terrorist activity. The powers contained in Part 4 of the Act were immigration powers and enabled the Home Secretary to certify and detain foreign nationals who were suspected of involvement in international terrorism and were believed to present a risk to national security, but who could not, for the time being, be removed from the United Kingdom. If it were feared that their removal from the United Kingdom would expose them to torture, then removal would put the United Kingdom in breach of article 3 of the Convention against Torture and of ECHR article 3. The Government had undertaken that Part 4 powers would only be used in connection with the threat posed by those linked to Al Qaeda and its associated groups. Moreover, the need for Part 4 powers was reviewed annually by Parliament, and would expire in November 2006. The powers had been used sparingly.

Mr. Spencer stated that the vast majority of cases involving foreign nationals in the United Kingdom had no connection with international terrorism. The majority of applicants were not in need of protection and were claiming asylum as a means of side stepping mainstream immigration controls. Because of that, in 2002, the Government legislated to deter the misuse of asylum without undermining the United Kingdom’s commitment to protecting genuine refugees.

Earlier this year new legislation introduced updated provisions on safe third countries – the European Union Member States, Iceland and Norway – to which asylum seekers could be sent without substantive consideration of their claims if one of those countries was the appropriate one to assess the claim. The number of claims for asylum in the United Kingdom had been reduced significantly.

The head of the delegation said significant progress had been made in improving conditions for prisoners in the United Kingdom in the last two decades. All Prison Services were determined to reduce to a minimum all types of discrimination and programmes and strategies had been developed to deal with the special needs of women and young people held in custody. New bodies to deal with police complaints had been established.

MARTIN HOWARD, the Director General of Operational Policy in the United Kingdom Ministry of Defence, speaking on the subject of the conduct of the United Kingdom Armed Forces abroad, in particular in Iraq and Afghanistan, noted that the United Kingdom Government had had troops on the ground in Iraq since March 2003 and in Afghanistan since November 2001. In giving effect to the United Nations Convention against Torture, extended universal jurisdiction to the crime of torture had been provided for by section 134 of the Criminal Justice Act of 1988 to which all members of the United Kingdom Armed Forces are subject whilst on operations abroad. All United Kingdom military personnel deploying to Iraq and elsewhere were briefed that prisoners, detainees and civilians must be treated with dignity and respect, and must not in any way be subject to abuse, torture, inhuman or degrading treatment.

In terms of the operations of the United Kingdom Armed Forces, the implementation of the Convention applied regardless of the territory in which they were operating, Mr. Howard said. The United Kingdom was doing its utmost to promote human rights in both Iraq and Afghanistan.

Initially in Iraq, individuals detained by British Forces were housed in the United States detention facility at Camp Bucca, in Umm Qasr. A British Monitoring Team and Prisoner Registration Unit were based permanently at the Camp to ensure that all individuals for whom the United Kingdom was the detaining power were treated appropriately. The treatment of these individuals as also covered by the MOU with the United States which confirmed that the United Kingdom remained the detaining power and confirmed that those transferred were entitled to the proper protection of the Geneva Conventions. Since 15 December 2003, British held internees have been housed at the Divisional Temporary Detention Facility at Shaibah in southern Iraq which was run by the United Kingdom.

Internees held by the United Kingdom at Shaibah were free to move around, could practice their religion freely, were provided with halal food three times a day and fresh bottled water as they required, and were provided with medical treatment of a standard provided to its own personnel. As at 14 November 2004, there were only 10 internees held at Shaibah.

In Afghanistan the United Kingdom had only one small temporary holding facility at Camp Souter in Kabul which was currently empty. This facility had been used on less than 15 occasions since its construction.

As expressed in the written responses by the delegation, all deaths, injuries or allegations of ill-treatment of civilians in Iraq by British Armed Forces were investigated, Mr. Howard stated. Only a small number of cases, 17 in all, could be categorized as alleging inhumane or degrading treatment or torture. The 17 cases included all cases relating to deaths in detention and all cases which could be regarded as alleging deliberate mistreatment. Moreover, of these 17 cases, so far, eight cases had closed with no criminal establishment; five investigations were still ongoing; three were under the consideration by Service legal and prosecuting authorities; and one case had been directed for trial. The number of investigations needed to be considered against the fact that some 65,000 British Servicemen and women had served in Iraq. Only a tiny minority had been involved in incidents involving the alleged ill-treatment of Iraqi civilians.

DAME AUDREY GLOVER, Foreign and Commonwealth Office, speaking on how the United Kingdom Overseas Territories were fulfilling their obligations under the Convention, said the United Kingdom had 14 Overseas Territories with a total population of approximately 202,000. The Overseas Territories were constitutionally not part of the United Kingdom and enjoyed the maximum possible degree of self-governing consistent with the United Kingdom Government’s overall responsibilities and international obligations.

Dame Audrey said the Government of the United Kingdom had employed a Prison Advisor, who regularly visited prisons in the territories and provided them with recommendations on possible improvements. The Department for International Development in the United Kingdom would be recruiting a human rights advisor later this year who would advise strategies for child protection and juvenile welfare, as well as raising awareness of human rights. Moreover, the Overseas Territories were making an effort to take account of the Convention against Torture and had made progress with their implementation of it.

Discussion

FELICE GAER, the Committee Expert serving as Rapporteur for the report of the United Kingdom, complimented the delegation for the very well written, detailed and ample report and for its valiant responses to the extensive range of issues put forth by the Committee. She expressed appreciation for the format of the report and the way in which the previous concerns and recommendations of the Committee were addressed. The Rapporteur also congratulated the Government of the United Kingdom for its ratification of the Optional Protocol to the Convention.

Ms. Gaer said the Committee was interested in learning more about whether the Government had begun the process of allowing visits by domestic human rights institutions to detention places and whether they would be able to visit some of the places that they had reportedly been denied access to. She also asked if the Government anticipated that national institutions would have the power to demand access to documents.

With regard to article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Rapporteur said she appreciated the information provided in this regard, notably that in the United Kingdom article 3 of the FCHR made all conduct of torture and inhuman treatment unlawful, but added that the issue of the defence of lawful excuse remained of concern; she asked for more information in that regard. Turning to the issue of jurisdiction, Ms. Gaer asked how the Criminal Justice Act was applied in overseas operations, in particular in Iraq, and what kind of lawful excuses could be pleaded. She also asked what jurisdiction the United Kingdom Government recognized as governing United Kingdom citizens who were present in Iraq.

Concerning the status of the Convention, the Rapporteur asked whether there were any plans to incorporate the Convention in terms of the inadmissibility of evidence obtained by torture. The Rapporteur asked whether the Government considered the United Kingdom soldiers participating in peacekeeping missions as bound by the provisions of the Convention.

Turning to the issue of detainees in Afghanistan and Iraq, the Rapporteur asked the delegation whether it could provide additional information on whether detainees were mistreated, whether British military or other officials were present during interrogations conducted by other States, and if these officials were provided with training and guidance regarding the Convention, notably articles 3 and 16. Moreover, she asked if any of these officials raised questions when apparent human rights violations occurred and whether there had been any internal investigation by the United Kingdom Armed Forces in this connection.

Similarly, Ms. Gaer asked whether the United Kingdom Prime Minister’s Special Envoy on Human Rights had the mandate to oversee United Kingdom personnel serving in Iraq, whether she interacted with Iraqis, and whether she had had exchanges with personnel of other foreign forces.

Ms. Gaer referred to the written response by the delegation to the list of issues which indicated that when United Kingdom personnel reported evidence that members of the personnel of other States were in breach of applicable international standards in the use of interrogation techniques and detention facilities, the United Kingdom made representations to the State in question. In that regard, she asked whether any such representations had been made and to which States.

Ms. Gaer asked the delegation to elaborate on the conditions related to diplomatic assurances applicable to expellees, at what level were officials involved in making determinations of this kind and whether the State party saw diplomatic assurances as a sufficient safeguard for preventing torture. She also asked for elaboration on the process undertaken when an individual from a safe third country appealed for asylum and what protections existed. She also sought additional information for reported claims of abuse in the treatment of asylum seekers. Ms. Gaer indicated that information suggested that as many as one third of the complaints against asylum seekers had been sustained and asked what the practice had been in terms of verification and investigation powers, as well as sanctions of persons found to act improperly towards asylum seekers.

Turning to the State’s anti-terrorism law, Ms. Gaer mentioned that many non-governmental organizations had said this bill was rushed through Parliament without sufficient review procedures taking place. She asked the delegation to comment.

The Rapporteur asked additional questions with regard to trafficking in women, claims of violations from women, minorities and other vulnerable groups, the applicable burden of proof, the application of anti-terrorism legislation in Northern Ireland, the Female Genital Mutilation Act and the monitoring of sexual violence in prisons.

Ms. Gaer said that according to information received there seemed to be an increase of inter-prisoner violence. She asked for additional information in that regard. She also inquired whether there had been any assessment of suicides in the army and investigation as to the degree to which they may reflect bullying or harassment and whether there had been any inquiries or prosecutions or preventive measures established.

FERNANDO MARINO MENENDEZ, the Committee Expert serving as Co-Rapporteur, said the status of the Convention in the United Kingdom appeared weak as domestic law could contradict it. He asked how this affected the handling of asylum cases. Mr. Menendez also asked for additional information on the principle of non-refoulment for prisoners in Iraq and on the use of evidence obtained by means of torture.

Mr. Menendez asked for specific information regarding the introduction of criminal offences for asylum seekers who had destroyed documents and in general the application of the Convention in such cases. As per the nationality law of 2002, he asked what legal consequences flowed from the deprivation of United Kingdom nationality, and whether these rejected applicants would be then fully treated as foreigners. The Co-Rapporteur asked which governmental body in the United Kingdom was tasked with implementing the Optional Protocol to the Convention. Mr. Menendez also sought information on cases of suspected terrorists.

Another Expert raised the case of an individual currently being held in Guantanamo who claimed to have been forced to provide information under torture and with British officials present. He asked whether that information extracted under duress could be used in legal proceedings. The Expert also referred to reports of several Iraqis who were allegedly tortured while in custody in Iraq and that the United Kingdom authorities had been asked to carry out investigations. More information was sought from the delegation in this regard. Another Committee member asked whether the State party planned to entrust a civilian mechanism with handling these cases of alleged torture inflicted on detainees and what measures had been put in place to ensure that the interrogation of suspects was conducted in accordance with the State party’s obligations under the Convention.

Another Expert asked what measures the State Party had taken to allow torture survivors to seek remedy in the United Kingdom courts. Another asked for the State party’s comment on allegations that United Kingdom personnel instead of assisting United Kingdom citizens in Guantanamo had acted as interrogators on more than one occasion.

Another Expert asked whether the State party envisaged incorporating the Convention into domestic law. Other Committee Experts asked questions pertaining to the admissibility of evidence obtained under torture, the Pinochet case, diplomatic assurances, the principle of non-refoulment, the process of the review of claims by asylum seekers, and deaths of detainees in police custody.