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A ruling by Britain’s second-highest court undermines the global ban on torture, Human Rights Watch said today. In a 2-to-1 ruling, the Court of Appeal said that evidence obtained under torture in third countries may be used in special terrorism cases, provided that the British government has “neither procured the torture nor connived at it.”

“This is a dramatic rollback in fundamental rights,” said Rachel Denber, acting executive director of Human Rights Watch’s Europe and Central Asia Division. “The global ban on torture is absolute. Britain should be a leader in upholding that principle rather than looking for ways around it.”

The court ruled that the British government can use evidence obtained under torture outside the country when deciding to detain indefinitely foreign terrorism suspects, unless Britain was involved in the torture or encouraged it. The same material can also be considered by the Special Immigration Appeals Commission, which hears appeals by these suspects against indefinite detention. Much of the evidence before this commission is heard in closed proceedings to which the detainees and their lawyers of choice have no access. Instead, they are represented by security-cleared lawyers appointed by the government.

Under the Convention Against Torture, to which Britain and more than 130 countries are party, evidence obtained under torture is inadmissible in “any proceedings” before a court. But the majority in the Court of Appeal said today that because the Torture Convention is not part of British domestic law, the Home Secretary has no obligation to enquire about how information from third countries was obtained when he certifies foreign nationals as suspected international terrorists.

“The court’s decision sets a devastating precedent,” said Denber. “Arguing that torture is acceptable provided that the British government is not involved is a shocking abdication of responsibility.”

In his dissenting judgment, Lord Justice Neuberger made clear the consequences of the majority’s decision, stating that “by using torture, or even by adopting the fruits of torture, a democratic state is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys.”

The ruling came in the Court of Appeal’s decision rejecting the appeals of 10 foreign nationals certified as suspected international terrorists under the Anti-Terrorism Crime and Security Act 2001. The men were appealing against earlier decisions by the Special Immigration Appeals Commission to uphold their certifications as suspected international terrorists.

Nine of the men are subject to indefinite detention under the law without charge or trial, together with three additional suspects, who were not parties to today’s appeal. The tenth appellant has left Britain. The Court of Appeal denied the men permission to appeal to the House of Lords, but the men have the right to request such permission directly from the higher court.

The ruling is the latest in a series of blows to human rights protection in Britain arising from the indefinite detention allowed under Part 4 of the Anti-Terrorism Crime and Security Act 2001. In order to enact the law in December 2001, Britain suspended part of its human rights obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The Joint Human Rights Committee of the British Parliament has called for indefinite detention under Part 4 to be scrapped “urgently,” arguing it has a “corrosive effect on the culture of respect for human rights.”

This October, a specially convened nine-judge panel in the House of Lords will hear an appeal on the lawfulness of the derogation and the compatibility of the legislation with other human rights obligations from which Britain has not derogated.

In the three years since the September 11 attacks in the United States, governments around the world have adopted counterterrorism measures that violate fundamental human rights. They have adopted laws allowing indefinite detention without judicial review, and restricting or denying altogether access to counsel in terror cases. They are also increasingly reneging on their obligations not to send terror suspects back to countries where they would be at risk for torture, frequently justifying such returns by seeking “diplomatic assurances” from governments with long-standing records on torture that the suspects would not be harmed.

To read Human Right’s Watch’s briefing paper analyzing the indefinite-detention regime in the United Kingdom, please see:

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