Law Lords Annual December Special

[liadnan]

In a repeat performance of their judgment in A v. Home Secretary of last year, which I remember cheering at the time, the Lords have now ruled (in the same case) that that evidence procured by torture is inadmissable in the courts of this country. Praise be.

Interesting and possibly quite important divide between Bingham, Nicholls and Hoffman on the one side (the right one in my view) and the majority on the other on where the burden lies when considering whether information was acquired by torture though. Bingham at 59:

My noble and learned friend Lord Hope proposes, in paragraph 121 of his opinion, the following test: is it established, by means of such diligent enquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet. The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC because its source will not have been "established".

and Nicholls at 80:

In doing so I associate myself with the observations of Lord Bingham of Cornhill on the burden of proof where the admissibility of evidence is challenged before SIAC on the ground it may have been procured by torture. The contrary approach would place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge. In practice that would largely nullify the principle, vigorously supported on all sides, that courts will not admit evidence procured by torture. That would be to pay lip-service to the principle. That is not good enough.

As opposed to Hope at 119:

I must now explain why I believe that the question which SIAC must address should be put positively rather than negatively. The effect of rule 44(3) of the Procedure Rules is that sources of all kinds may be relied upon, far removed from what a court of law would regard as the best evidence. SIAC may be required to look at information coming to the attention of the security services at third or fourth hand and from various sources, the significance of which cannot be determined except by looking at the whole picture which it presents. The circumstances in which the information was first obtained may be incapable of being detected at all or at least of being determined without a long and difficult inquiry which would not be practicable. So it would be unrealistic to expect SIAC to demand that each piece of information be traced back to its ultimate source and the circumstances in which it was obtained investigated so that it could be proved piece by piece, that it was not obtained under torture. The threshold cannot be put that high. Too often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages. Our revulsion against torture, and the wish which we all share to be seen to abhor it, must not be allowed to create an insuperable barrier for those who are doing their honest best to protect us. A balance must be struck between what we would like to achieve and what can actually be achieved in the real world in which we all live. Articles 5(4) and 6(1) of the European Convention, to which Lord Bingham refers in para 62, must be balanced against the right to life that is enshrined in article 2 of the Convention.

(Rodgers, Carswell and Brown essentially agreed with Hope: 138, 158, 172.)

Incidentally, I think it's clear from the judgments that should the point arise the Lords will be singularly unimpressed with the narrow definition of torture which the CIA appear to be using, see eg para 53.

Comments

[chickenfeet2003.livejournal.com]

Praise be indeed! It's nice to see some sign of sanity and decency in high places.

[frankie-ecap.livejournal.com]

Everything you said.

On a slightly different note, what is the definition of a liberal?

[liadnan]

It's a term that has almost become useless to be honest (particularly because in mainland Europe and Russia it tends to be used to mean "economic liberal" and of people who admire Margaret Hilda Thatcher but in the US to mean "social liberal" but also opposed to "libertarian"). "The principle that freedom should only be curtailed so far as is necessary to protect the equal freedoms of others"? But where does one draw the line (for which see John Rawls, A Theory of Justice and (after he'd seriouly changed his mind Political Liberalism, or Mill's On Liberty)?

[quixotickitten.livejournal.com]

I wish I lived somewhere sane... If not for friends like you, I'd wonder if perhaps I weren't the crazy one.

[lizw.livejournal.com]

Thank goodness. I was fretting about the potential outcome of this, because our record on the admissibility of evidence obtained illegally by the police is so poor.

[anstruther.livejournal.com]

Was wondering if there was only one degree of separation between us, because I know a girl who read law at Corpus 92-95 and it sounded as though you might have known her given your birth date/interests, but after your latest post on trennels I'm not sure when you might have been there? I read law/twiddled pencils at a neighbouring college between 92-95.

[liadnan]

My academic history is far more complicated than that. I was a historian first and a lawyer only latterly. I might remember your friend and know people who almost certainly would. Corpus is very small.

Neighbouring on the blindingly academic side or the "idling their way through college on the way to a seat in the House of Lords" (pace Betjeman I think) side?

Or on the boatie side...?

[anstruther.livejournal.com]

Well, it wasn't the blindingly academic side! I hadn't heard the idling line before but it sounds about right, or at any rate an accurate description of the first two years of my undergraduate degree. Not that the House of Lords is ever going to beckon...

[liadnan]

Did I ever tell you that your friend was a friend of friends?