Torture to be sanctioned again in Westminster? – et sic per gradus ad mia tenditur

By Martin Bright writing in The New Statesman

In Committee Room 1 in the Commons, the future of our democracy is in the balance. Here the law lords are being asked to sweep aside 250 years of legal precedent, writes Martin Bright

From the scrum of journalists, backbenchers and researchers in the committee corridor of the Commons, you would be forgiven for thinking great matters of state were at issue. But the mob outside Committee Room 14, where the Tories were holding the first ballots in their interminable leadership contest, were jostling for elbow room at a sideshow.

At the same time, a hundred paces along the corridor in Committee Room 1, the future of our democracy was being decided. Here the law lords were meeting to hear an appeal against a high court ruling last August that evidence obtained under torture in other countries could be used in courts in England and Wales.

When I attended, the rest of the media pack was nowhere to be seen and not a single front-bench MP from any party was present. In this small room, with just enough public seats to hold the lawyers, interested parties and a handful of spectators, their lordships were being asked to overturn a decision that sweeps aside 250 years of legal precedent. If last summer’s decision stands, evidence extracted by torture will be admissible in terrorist cases as long as no British official has connived in the abuses.

The form of torture last sanctioned in Britain, peine forte et dure, was abolished in 1772. In this bizarre judicial ordeal, defendants who refused to enter a plea would have heavier and heavier stones placed on their chests until they pleaded guilty or not guilty – or suffocated to death. But even this crude punishment was not designed to extract confessions to be used in evidence. At the time of its use, peine forte et dure was considered an insurance against the abuse of the jury system by defendants who “stood mute” – in other words, asserted their right to silence.

Although convicted criminals were still hanged, drawn and quartered well into the 19th century, there has been a gradual shift away from judicial cruelty since the Bill of Rights outlawed “cruel and unusual punishments” in 1689. The “war against terror” has changed that. Ministers are now persuaded that, in some circumstances, torture is tolerable – as long as it is carried out by foreigners on our behalf. The issue first emerged during hearings for ten Arab terror suspects held without trial under the Anti-Terrorism, Crime and Security Act 2001, when an MI5 officer conceded that some of the evidence used to detain the men might have been obtained under torture.

Ranged against the government are lawyers for groups such as Amnesty International, the Medical Foundation for the Care of Victims of Torture and Doctors for Human Rights. They argue that the prohibition of torture in law is absolute and that admission of evidence in a British court would act as a green light to regimes with a poor human rights record.

It is an established principle that international agreements on the prohibition of torture are breached not only in the perpetration but in the tolerance of such acts. Article 15 of the UN Convention Against Torture is clear on this.

In 1992 the UN Special Rapporteur on Torture found that courts accepting evidence obtained by inflicting pain were responsible for “the flourishing of torture”. Even in exceptional circumstances, such as at the International Criminal Tribunal for the Former Yugoslavia, evidence obtained in this way was specifically excluded. Just last year the UN General Assembly restated its plea to states not to use evidence obtained under torture in court.

Although most UN conventions were signed straight after the Second World War, the Convention Against Torture came into force only in 1987. That it exists at all is a tribute to the work of the campaigning organisations that now oppose the government on the use of torture evidence. Signatory governments have a right to be proud of the high principles the document expresses.

What a contrast to the shabby little agreement the British government has just signed with Libya in which Tripoli agrees not to mistreat terror suspects deported from the UK. The spectacle of a British prime minister accepting such assurances from Colonel Gaddafi, in the week that Saddam Hussein went on trial in Baghdad, provided a stark reminder of the inconsistencies of British foreign policy.

Next month marks the 400th anniversary of our most celebrated victim of torture, Guy Fawkes. James I had to make an executive order because torture was, even then, frowned on in common law: “The gentler tortours are to be first used unto him, et sic per gradus ad mia tenditur [and so by degrees proceeding to the worst], and so God speed your goode worke.”

The law lords should perhaps visit the “Gunpowder Plot” exhibition in parliament’s Westminster Hall, a short walk from Committee Room 1, where they can see the crushed, barely legible signature of the tortured Fawkes, before they make their decision on reintroducing this barbaric practice to our courts.