COMMITTEE AGAINST TORTURE HEARS RESPONSE OF UNITED KINGDOM

18 November 2004


The Committee against Torture this afternoon heard the response of the United Kingdom to questions raised by Committee Experts on the fourth periodic report of that country on how it was implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In response to a question on whether the provisions of the Criminal Justice Act of 1988 were deficient in their coverage, the delegation said that the offence in the 1988 Act was cast widely and covered anyone who intentionally inflicted pain or suffering on another in the performance of their official duties and rejected the suggestion that possible defences were too wide. There was a defence which simply reflected the scope of Article 1 of the Convention and did not extend to torture following ‘superior orders’.

Asked about the state of emergency in Northern Ireland, the delegation said the Government of the United Kingdom was committed under the Belfast Agreement to the ultimate removal of the temporary Northern Ireland provisions of the Terrorist Act of 2000, but only when the security situation allowed.

Turning to questions raised on Iraq and Afghanistan, the delegation said British Armed Forces and military advisers and British public servants who were deployed with them were subject at all times to English criminal law. The delegation added that they were also subject to local laws although in many cases there were status of forces arrangements in place which provided immunity to United Kingdom troops from local criminal or civil processes. This was the case in both Iraq and Afghanistan. The delegation made clear, however, that where there was evidence of any wrongdoing on the part of the United Kingdom Armed Forces, the authorities investigated and as necessary prosecuted.

Concerning the role of the Prime Minister’s Special Envoy on Human Rights to Iraq, Anne Clwyd, the delegation noted that Ms. Clwyd’s principal role was to support the Iraqi authorities in addressing the human rights abuses committed against the Iraqi people under the former regime, and in establishing human rights mechanisms for the promotion and protection of human rights.

On the issue of diplomatic assurances in cases of removal from the United Kingdom, the delegation said the United Kingdom's use of such mechanisms was in the context of its commitment to abiding by its international obligations and its policy not to remove any person to another State where there were substantial grounds for believing that he or she would be in danger of being subjected to torture.

The Committee will submit its conclusions and recommendations on the report of the United Kingdom towards the end of the session on 26 November.

As one of the 138 States parties the Convention against Torture, the United Kingdom is obligated to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 10:30 a.m. on Friday, 19 November, it will continue with its consideration of draft guidelines for States parties submitting initial reports.

Response by Delegation

Concerning the ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the delegation recalled that on 26 June 2004, the Foreign Secretary had launched a worldwide lobbying campaign encouraging other countries to join the United Kingdom in signing and ratifying the Protocol. The United Kingdom did not propose to establish any new domestic national monitoring body, as it already had a number of such bodies in place, including Her Majesty’s Inspectorate of Prisons.

The delegation noted that international law did not of itself become part of the domestic legal order unless Parliament passed a law to that effect. Before it ratified a treaty, however, the United Kingdom's Government’s made sure that its domestic law, which was a mixture of common law and statute, was consistent with its international obligations.

As to the Convention against Torture, the United Kingdom had passed section 134 of the Criminal Justice Act of 1988 in order to create an offence of sufficiently wide jurisdiction to implement articles 4 and 5 of the Convention. In other respects, the United Kingdom simply accepted the obligations placed by the Convention on the United Kingdom Government – which was why no statute was necessary, for example, to give effect to article 3, or article 12. Moreover, the approach of the United Kingdom Government was similar to that adopted by a number of other common law countries with a dualist system. Like the United Kingdom, they had given effect to the Convention by relying on a variety of common law and statutory provisions. A delegate added that no “bridging” statute was necessary to give effect to the United Kingdom’s obligations under the Convention against Torture. Also, giving people access to United Kingdom domestic courts was already achieved in both its criminal and civil law.

Asked if the provisions of the Criminal Justice Act of 1988 were deficient in their coverage, the delegation said that the offence in the 1988 Act was cast widely and covered anyone who intentionally inflicted pain or suffering on another in the performance of their official duties. The Act provided a defence for a person charged with an offence of torture to prove that he had lawful authority, justification or excuse. But the Convention was clearly not intended to cover the pain lawfully caused by the proper conduct of a medical surgeon. That meant the surgeon or the prison governor administering ordinary imprisonment, were not criminalized for their proper and lawful conduct. The delegation rejected the suggestion that possible defences were too wide.

The delegation continued to say that a defence using the words such as “lawful authority, justification or excuse” was common in United Kingdom law. The word “lawful” was weighty and required the authority or excuse to be in accordance with law; to have the quality of law. In response to a question, the delegation confirmed that none of the 17 cases in Iraq referred to were dismissed on any such grounds.

In response to questions raised, the delegation said the Special Immigration Appeals Commission (SIAC) had emphatically rejected any suggestion that any evidence relied upon by the Secretary of State was or even may have been obtained by torture – or indeed by any inhuman or degrading treatment. SIAC’s view was confirmed by the Court of Appeal. SIAC was one of a number of practical, administrative and legal safeguards providing for detailed scrutiny and review of the Secretary of State’s decision to certify and detain under the ATSC powers.

In response to a question asked as to whether any cases had been brought by British nationals who claimed to have been tortured abroad, the delegation said one such case was being contested in the British courts at present. It was a civil case brought by three British citizens and a Canadian against officers of a foreign government and against the State itself. The legal hearings this far had been on the question of whether State Immunity applied and not on whether the alleged acts took place.

As to why there was no systematic collection of statistics on torture cases brought under the Human Rights Act, the delegation said the Act for the most part did not create a set of new rights, or new causes of action. Under the Act, a citizen could rely on the rights guaranteed by it in any proceedings. Sometimes the case was obviously a “human rights” case but sometimes the case carried no particular “human rights” or “torture” label at all. For that reason, the United Kingdom had found it difficult to categorize or count “human rights” cases.

As to the alleged denial of access of the Northern Ireland Human Rights Commission to Rathgael Juvenile Justice Centre and Maghaberry Women’s Prison (Mourne House) which was relocated to Hydebank Wood, and the powers of the Commission, the delegation said that in light of the “intense and focussed review” of Mourne House Women’s Prison in the first half of 2004, and periodic inspections which were due, the Prison Service had asked the Commission to put off any visit of this sort until next spring.

In response to a follow up question, the delegation noted that the prison services in Northern Ireland had improved considerably; according to a recent survey of female prisoners in Hydebank Wood, the prisoners considered that they felt safer and had better living conditions.

Asked about the state of emergency in Northern Ireland and the basis on which the British Government considered the continuation of emergency provisions there to be justified; the delegation said the Government of the United Kingdom was committed under the Belfast Agreement to the ultimate removal of the temporary Northern Ireland provisions of the Terrorist Act of 2000, but only when the security situation allowed. The delegation noted that levels of violence had decreased in recent years although some terrorist groups were still active in Northern Ireland and still retained the capacity and intent to initiate serious widespread violence and loss of life. Consequently, although the Government was committed to the removal of Northern Ireland specific counter-terrorism provisions, the current framework was necessary to counter the assessed threat.

In response to a question, the delegation stated that no baton rounds had been fired by the police or the army in Northern Ireland since September 2002. However, the United Kingdom Government was not yet in a position to remove from the police the option of using baton rounds.

Turning to questions raised on Iraq and Afghanistan, a member of the delegation said the United Kingdom Armed Forces and military advisers and other United Kingdom public servants who were deployed with them were subject at all times to English criminal law. This was the case for conflict and peacekeeping operations and was independent of which national or international body had authorised operations. The United Kingdom Armed Forces were also subject to local laws although in many cases there were status of forces arrangements in place which provided immunity to United Kingdom troops from local criminal or civil processes. This was the case in both Iraq and Afghanistan. The delegation made clear, however, that where there was evidence of any wrongdoing on the part of the United Kingdom Armed Forces, the authorities investigated and as necessary prosecuted.

As to the obligations of private contractors, the delegation said contractors were subject to the domestic law of the country in which they were working. Their conduct might be liable to prosecution under the provisions of the United Kingdom Criminal Justice Act if they committed acts of torture at the instigation of a public official because this provision applied to a person regardless of their nationality and regardless of where in the world they committed the act. Private contractors who were engaged by the United Kingdom Armed Forces on operations abroad were subjected to the same legal framework as the United Kingdom Armed Forces operating in that country.

Asked about what measures were in place to ensure compliance with the Convention in Iraq, the delegation noted that the Government of the United Kingdom ensured that individuals were trained appropriately to perform their various functions in accordance with all relevant legal requirements and those who needed it had access to legal advice.

Turning to detentions, a member of the delegation said the United Kingdom Government did not believe that article 3 of the Convention on non-refoulment was applicable to the transfer of criminal suspects from the United Kingdom physical custody in Iraq or Afghanistan to the physical custody of either the Iraqi or Afghan authorities, because the individuals in question were subject to the jurisdiction of either Iraq or Afghanistan throughout. There was therefore no question of extradition or expulsion.

As to the transfer of detainees, the delegation said the United Kingdom had transferred some detainees to United States custody for a period; the United Kingdom retained responsibility for them as the detaining power in accordance with the Geneva Conventions and had concluded an agreement with the United States to that effect.

On the issue of British involvement in United States interrogations, the delegation noted that all interviews conducted by United Kingdom intelligence personnel, with one exception, were conducted in a manner consistent with the Geneva Conventions and with the agreement of the detainee. Where United Kingdom personnel were taking part in the interviews they were instructed to report if they believed detainees were being treated in an inhumane way. The exception involved a detainee who was brought in hooded and shackled by the United States military. The United Kingdom official understood that the measure was necessary for security reasons and was not part of a form of duress for interrogation purposes.

Concerning allegations contained in reports from Amnesty International, the delegation said the United Kingdom Government had published a detailed response to Amnesty this summer which set out its response to all of the allegations and recommendations Amnesty had put to it in four reports about Iraq, as they applied to the United Kingdom Armed Forces.

Regarding the incidence of suicide and self-harm in the United Kingdom Armed Forces and concerns about bullying, the delegation noted that the incidence of suicides in the Armed Forces was generally lower than in the United Kingdom general population. The Army had initiated work to update the guidance and procedures on the prevention and management of suicide and deliberate self-harm which had been shared with the Royal Navy and the Royal Air Force. Among other things, a confidential telephone support line was established in December 1997 that provided fully trained, confidential, independent and non-judgmental listening and support service to army personnel and their families.

In response to a series of questions on safe countries and the processing of asylum claims, the delegation said the position of the United Kingdom law was that a person’s removal in any instance would be a breach of the United Kingdom’s obligations under the ECHR where this would expose them to a real risk of torture or inhuman or degrading treatment or punishment or where this would lead to a flagrant breach of other ECHR rights. In any case where it was considered that an asylum claim was clearly unfounded with the result that only an out-of-country appeal was possible, it had to be checked by a senior caseworker as well as the caseworker initially in charge of the claim. Moreover, a person whose claim had been certified as being clearly unfounded could seek to challenge that certificate in United Kingdom courts through a process called judicial review with suspensive effect. The United Kingdom had a policy of not removing unaccompanied children under 18 if they had no family that could be traced in their country of origin and no adequate reception and accommodation arrangements existed.

In response to a question, the delegation said the relatively high percentage of complaints against Immigration Service staff recorded as being substantiated was largely explained by many complaints raising a number of allegations and a complaint being recorded as substantiated if just one of them was made out. The delegation noted that the number of such allegations each year was between 200 and 300 which was a relatively small figure given the many millions of individuals seen each year by Immigration Service staff.

The Committee asked several questions on the issue of the Anti-Crime, Terrorism Act of 2001 (ATCS). As to the state of emergency and whether it fully existed, the delegation highlighted the threat posed since the events of 11 September 2001 and referred to the findings of the SIAC and the Court of Appeal. In response to a question which suggested that the fact that only 17 individuals had been detained under the ATCS placed in doubt whether a state of emergency truly existed, the delegation explained that the Home Secretary had undertaken to use these powers sparingly. They had only been used in a small number of cases where prosecution had not been possible and where the individuals could not, for the time being, be removed from the United Kingdom.

In response to a question on the status of independent reviews, the delegation noted that there had been two separate independent review procedures – one conducted by Lord Carlile of Berriew on sections 21 to 23 of the ATCS Act; and another which covered the whole of the Act. These provisions ensured that the ATCS was made subject to periodic Parliamentary review and renewal. Apart from the independent review provisions on the face of the Act, Parliament also had the benefit of the reports published by the Parliament Joint Committee on Human Rights.

As to the question in the context of a letter written by Moazzem Begg, as to whether material that had been obtained as a result of torture had been used as evidence before the SIAC; the delegation said SIAC had concluded that there was no material that had been obtained as a result of torture.

On the subject of monitoring sexual violence in prison, the delegation noted that this type of monitoring was not specifically carried out in the United Kingdom. Given the culture of prisons, specific studies could be illustrative, but routine statistical collection would be unreliable, the delegation added.

Asked about review procedures for determining the continued necessity of solitary confinement, the delegation said that in Prison Service establishments in England and Wales, there were three reasons for segregation from the normal prison community: prisoners under punishment; prisoners isolated for good order and discipline; and prisoners isolated at their own request. Throughout the United Kingdom, there were review procedures for prisoners in all these categories.

Concerning the role of the Prime Minister’s Special Envoy on Human Rights to Iraq, Anne Clwyd, the delegation noted that Ms. Clwyd’s principal role was to support the Iraqi authorities in addressing the human rights abuses committed against the Iraqi people under the former regime, and in establishing human rights mechanisms for the promotion and protection of human rights. Ms. Clwyd has also taken an interest in detention issues and has visited the United Kingdom’s detention facility at Shaibab and the United States run facility at Abu Ghraib. At no time did she witness abuse or mistreatment of detainees at either detention facility, although she raised one case of alleged mistreatment brought to her attention with the United States authorities at the highest levels.

The delegation confirmed that the United Kingdom had made representations to the United States at the highest levels on numerous occasions, most recently in October 2004, when allegations came to light where there may be a question of their breaching international obligations in Iraq. The United Kingdom had also made representations to the Iraqi Interim Government about the importance of investigating all allegations of mistreatment.

A member of the delegation mentioned that she had been serving as the Senior Adviser to the Iraqi Minister of Human Rights since January 2004. During this time she had worked with the Iraqi authorities to secure their commitment to sign the Convention against Torture which had been announced in Geneva in March 2004. She had also supported the Ministry in gaining a permanent presence at the United States facility at Abu Ghraib, where a team of Iraqi doctors and lawyers, had unrestricted access to the detainees.

On the issue of Guantanamo Bay, the delegation said the United Kingdom position was that it regarded the conditions under which all those detainees who have been held in Guantanamo as unacceptable. With respect to British detainees, the United Kingdom Government had raised their cases with the United States Government on a number of occasions, and called for them either to be tried fairly in accordance with international standards or to be returned to the United Kingdom. Moreover, British officials from the Security Service had interviewed a number of detainees in Guantanamo regarding issues relevant to the United Kingdom’s national security. All United Kingdom personnel were instructed to report immediately any activities carried out by British personnel or those of any allies with whom the United Kingdom was operating that came to their attention and that could be seen as torture or other cruel, inhuman and degrading treatment.

Asked to provide details of cases where British nationals were alleged to have suffered torture in other States, the delegation noted that the United Kingdom had no consolidated list of verified cases of torture or ill treatment suffered by British nationals, nor did it have a list of countries where such acts have been proven to have occurred.

On the issue of diplomatic assurances in cases of removal from the United Kingdom, the delegation said the United Kingdom's use of such mechanisms was in the context of its commitment to abiding by its international obligations and its policy not to expel, return or extradite any person to another State where there were substantial grounds for believing that he or she would be in danger of being subjected to torture. If the United Kingdom Government considered that securing assurances from a State authority would enable it to remove a person to a country in a manner consistent with its international obligations, then it believed it was worth trying to do so.