House of Lords House of Commons Joint Committee on Human Rights
The UN Convention Against Torture (UNCAT)
Nineteenth Report of Session 2005-06
Volume II
Oral and Written Evidence
Ordered by The House of Lords to be printed 18 May 2006 Ordered by The House of Commons to be printed 18 May 2006
HL Paper 185-II HC 701-II Published on 26 May 2006 by authority of the House of Lords and the House of Commons London: The Stationery Office Limited £20.50
Joint Committee on Human Rights
The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders, draft remedial orders and remedial orders.
The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is two from each House.
Current Membership
HOUSE OF LORDS HOUSE OF COMMONS Lord Bowness Mr Douglas Carswell MP (Conservative, Harwich) Lord Campbell of Alloway Mary Creagh MP (Labour, Wakefield) Lord Judd Mr Andrew Dismore MP (Labour, Hendon) (Chairman) Lord Lester of Herne Hill Dr Evan Harris MP (Liberal Democrat, Oxford West & Lord Plant of Highfield Abingdon) Baroness Stern Dan Norris MP (Labour, Wansdyke) Mr Richard Shepherd MP (Conservative, Aldridge-Brownhills)
Powers The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman.
Publications The Reports and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/commons/selcom/hrhome.htm.
Current Staff The current staff of the Committee are: Nick Walker (Commons Clerk), Ed Lock (Lords Clerk), Murray Hunt (Legal Adviser), Jackie Recardo (Committee Assistant), Pam Morris (Committee Secretary) and Tes Stranger (Senior Office Clerk).
Contacts All correspondence should be addressed to The Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2467; the Committee=s e-mail address is [email protected].
The UN Convention Against Torture (UNCAT)
Oral Evidence
Page
Monday 21 November 2005
Mr Ben Ward, Special Counsel, Human Rights Watch Ms Carla Ferstman, Director, REDRESS and Mr Livio Zilli, Researcher, Amnesty International Ev 1
Wednesday 7 December 2005
Ms Jane Winter, Director, British Irish Rights Watch and Ms Aideen Gilmore, Research and Policy Officer, Committee on the Administration of Justice Ev 19
Monday 6 March 2006
Ms Harriet Harman QC MP, Minister of State Baroness Ashton of Upholland, Parliamentary Under-Secretary of State and Mr John Kissane, Head of Human Rights Compliance and Delivery, Department for Constitutional Affairsl Ev 30
Mr Keir Starmer QC and Ms Jane Gordon, Human Rights Advisers to the Northern Ireland Policing Board Ev 40
Wednesday 8 March 2006
Mr Shaun Woodward MP, Parliamentary Under-Secretary of State, Northern Ireland Office Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland, Police Service of Northern Ireland (PSNI) Ev 45
Monday 27 March 2006
Rt Hon Adam Ingram MP, Minister of State for the Armed Forces Lieutenant General R V Brims CBE DSO, Commander Field Army and Dr Roger Hutton, Director, Joint Commitments Policy, Ministry of Defence Ev 60
6
The UN Convention Against Torture
Written Evidence
Government & Public Bodies
1 Response by the United Kingdom to Recommendations by the United Nations Committee Against Torture following its examination of the United Kingdom’s 4th Periodic Report on 17/18 November 2004 dated 20 April 2006 Ev 68 2 Letter from the Chair to Rt Hon Harriet Harman QC MP, Minister of State for Constitutional Affairs, Department for Constitutional Affairs Ev 83 3 Letter from Baroness Ashton of Upholland, Parliamentary Under Secretary of State, Department for Constitutional Affairs Ev 85 4 Further evidence to the Department for Constitutional Affairs Ev 87 5 Letter from the Chair to Chief Constable Sir Hugh Orde, Police Service of Northern Ireland, re Use of AEPs Ev 88 6 Letter from Chief Constable Sir Hugh Orde, Police Service of Northern Ireland, re Use of AEPs Ev 88 7 Letter from Keir Starmer QC, Doughty Street Chambers, re Use of AEPs Ev 89 8 Letter from Mrs Nuala O’Loan, Police Ombudsman for Northern Ireland, re Use of AEPs Ev 89 9 Letter from the Chair to Shaun Woodward MP, Parliamentary Under Secretary of State, Northern Ireland Office Ev 90 10 Letter from Mr Shaun Woodward MP, Parliamentary Under Secretary of State for Northern Ireland, Northern Ireland Office Ev 90 11 Letter from the Chair to Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth Affairs, re Extraordinary Renditions Ev 91 12 Letter from Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth Affairs, re Extraordinary Renditions Ev 91 13 Letter from the Chair to Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence Ev 95 14 Letter from Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence Ev 96 15 Further letter from Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence Ev 103 16 Further letter from Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence Ev 104 17 Memorandum from Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence, further to oral evidence session of 27 March 2006 Ev 104
Other Organisations
18 Submission from Amnesty International Ev 105 19 Submission from British Irish Rights Watch Ev 110 20 Further submission from British Irish Rights Watch, re Extraordinary Renditions Ev 138 21 Submission from the Committee on the Administration of Justice Ev 141 22 Submission from Human Rights Watch Ev 145 23 Submission from Immigration Law Practitioners’ Association (ILPA) Ev 150 24 Joint submission from JUSTICE and Liberty on UNCAT Ev 153 25 Further joint submission from JUSTICE and Liberty on UK involvement in Extraordinary Renditions Ev 159 26 Submission from Kurdish Human Rights Project Ev 169 27 Submission from the Law Society Ev 170 28 Submission from the Redress Trust Ev 177 29 Further submission from the Redress Trust on the alleged use of UK airports in extraordinary renditions Ev 181 30 Submission from The 1990 Trust Ev 185
Individuals
31 Submission from Peter Kinderman, Professor of Clinical Psychology, University of Liverpool, re Psychological Torture Ev 188 32 Submission from Michelle Pratley Ev 189
335839PAG2 Page Type [SO] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 1 Oral evidence
Taken before the Joint Committee on Human Rights
on Monday 21 November 2005
Members present:
Mr Andrew Dismore, in the Chair
Bowness, L Mary Creagh Lester of Herne Hill, L Dan Norris Stern, B Mr Richard Shepherd Mr Douglas Carswell
Witnesses: Mr Ben Ward, Special Counsel, Human Rights Watch, Ms Carla Ferstman, Director, REDRESS and Mr Livio Zilli, Researcher, Amnesty International, examined.
Q1 Chairman: Welcome everybody. This is the first are in fact part of the same obligation and there is of our evidence sessions on UK compliance with no distinction between them, and in fact if there is the UN Convention Against Torture, and we have going to be an eVective international system for the three witnesses today: Mr Zilli from Amnesty prevention of torture it is absolutely critical that the International, Mr Ward from Human Rights states recognise that their obligation in relation to Watch and Ms Ferstman from REDRESS. First of torture does not stop with not torturing people all, thank youall for coming. What I wouldlike to themselves, but extends to their relations with other do is start oV with a general question and perhaps states and the actions they take that indirectly may this is best addressed in the first instance to Mr expose people to that risk. Ward. What is your overall view of UK compliance Mr Zilli: I would like to briefly thank the with the Convention Against Torture and where do Committee for having given this opportunity to youthink the di Yculties are to be found? Is it in Amnesty to address youon this subject,this very the legal structures, in Government policy or just important inquiry you are conducting. I would like in the practical treatment of detainees? to underscore what Ben has just said and I think Mr Ward: It seems to me that what we can observe that the Convention Against Torture as the in UK Government policy in respect of torture over primary instrument internationally makes it very the past several years is a kind of divergence and clear that the prohibition itself—which of course a sense that actually the obligation that the UK has has been recognised by the House of Lords and in respect of torture has a hard part and a soft part. many other judicial and other bodies to have the The hard part is that the UK has a clear obligation character of encompassing an erga omnes not to carry out any actions itself that would result obligation on governments—consists of a whole in torture, so it must not torture detainees, it must host of duties. These are duties not simply to not expose them to standards of detention which refrain from committing an act of torture or other cruel, inhuman or degrading treatment, but also to would amount to inhuman and degrading put in place a holistic system of measures which treatment. When one looks at the rhetoric and the encompass legislative, administrative, social and policy of the Government in relation to that aspect other measures to ensure that such acts are of torture, it seems to us that there is still a very prevented, investigated duly when they occur, full commitment to that and that is reflected in the V Y punished and that redress be o ered to the victims. most recent Foreign O ce Annual Report, for Clearly such obligations arise in respect of acts of example, which talks about torture. On the other torture perpetrated outside the United Kingdom hand, there is another aspect of the torture jurisdiction. For example, the UK authorities have obligation, and that is an aspect which relates not exercised universal jurisdiction under statute in the to the direct action of the United Kingdom but trial of an Afghan warlord by the name of Zardad, indirect action which results in people being thereby eVectively complying with the universal exposed to the risk of torture. That includes jurisdiction provisions enshrined in the transfers or extraditions of people to countries Convention. That, as I said, encompasses a whole where they would be at risk of torture. It includes list of preventative measures that must be put in the admission of evidence that may have been place. Generally, the attitude of the Government in obtained under torture. Regrettably, what we are this respect has been wanting. We have seen that seeing in that area is a sense that that obligation is the authorities have sought to circumvent the not an absolute one, it is not an obligation that the obligations under the Convention Against Torture UK Government needs to take as seriously or give and similar obligations arising from other as full respect to as the hard obligation that it must international treaties, chiefly the ICCPR and the not torture people itself. So that is really our European Convention on Human Rights, for concern. I should perhaps conclude by saying that example, with respect to the conduct of UK troops as a matter of international law, those two elements and other oYcials in Iraq— 3358395001 Page Type [E] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Ev 2 Joint Committee on Human Rights: Evidence
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
Q2 Chairman: We will be coming on to some of detail or a lack of willingness to recognise that the these issues later. One thing we cannot look at in UK practice and law was out of sync. In other this Committee is overseas abuses, we have to look words, there seemed to be a sense on the part of at the position in relation to the UK. So we cannot the delegation that the objective was to persuade get into the detail of what is actually happening the Committee that in fact the UK was in in Iraq. compliance, meeting its obligations, rather than Mr Zilli: I understand the point, it is just to perhaps to take on board the concerns the underscore the fact that that is simply a way of Committee expressed. So it had something of the circumventing the obligations arising from the appearance of a rather ritualistic exercise. That prohibition against torture, and that has been would be my concern about it. There was a very recognised by the Committee Against Torture itself large delegation, a very high level delegation—one who raised concern about it. Just generally, the of the largest delegations I have seen at the attitude of the UK Government has been somehow Committee—so on the face of it it is clearly a bizarre. We have received correspondence from the process which the UK Government takes seriously, MoD, from the Minister of the Armed Forces, but I would like to see a more genuine willingness Adam Ingram, addressed to Kate Allen when we to take into account the concerns and criticisms raised with the Committee the issue of the duty to that the Committee expresses and reflect those into V ensure an e ective, independent, thorough and UK policy and law. prompt investigation in connection with reports of abuses at army barracks and the response we received was that the reason why the Committee Q5 Lord Lester of Herne Hill: I would like to ask had decided to ask a question and then made a you some questions about incorporating the recommendation to that eVect was because the Convention Against Torture into UK domestic information had been provided by us, which I law. Really what I am searching for is something frankly find bizarre. quite specific, which is to try and identify what is a mismatch between the obligations in the Q3 Chairman: Can I ask, Ms Ferstman, do you Convention Against Torture and what the UK has think the reporting process under the Convention already done to incorporate the Convention. My is adequate to make Government accountable? Is understanding, and you will correct me if I am it eVective? wrong, is when we ratified the Convention the Ms Ferstman: Thank youvery muchon behalf of Government of the day in the Criminal Justice Act REDRESS for this opportunity. I do think the of 1988 did implement the Torture Convention so reporting process has been quite useful and it has far as jurisdiction is concerned, which seemed to me enabled the Government to speak to a number of to satisfy some of the main articles of the its policy objectives. If we look to the matter in its Convention. I understand of course the ambiguity broadest sense, I think it is fair to say that the about the use of evidence obtained by torture, Government has undertaken a number of very which is now being dealt with in the appeal to the important steps in respect of compliance with the Law Lords, and I understand the controversy Convention Against Torture which must be about deportation and Article 3 of the Torture underscored and recognised, including signing on Convention, read with or without the Human to the optional protocol, and the important work Rights Convention. Without being too general it does with third countries in respect of prohibition could one of you, and probably it is a question of of torture. So the problem that we see is that when REDRESS I suspect since they raise it in their it comes to the implementation of some of the more evidence, identify practical examples where you diYcult parts of the Convention, often there is a believe there is a mismatch between UK law and lack of legislative basis within the United Kingdom what the Convention requires, other than the ones for some of the basic provisions. What I mean by I have just identified? this is that the strict letter of the Convention Ms Ferstman: I do think one clear example is the Against Torture is not in all instances reflected in issue of lawful authority, which appears in section UK domestic law, and this has been a problem in 134(4) and (5)(b) of the Criminal Justice Act which certain cases particularly with respect to the torture relates to certain defences that may exist on evidence issue which has arisen in a number of conduct amounting to torture. In that respect, the other contexts. Committee Against Torture referred in its 1998 comments, where it recommended that the United Q4 Chairman: Do youthink there is anything Kingdom Government reform this particular which could make the reporting process more aspect, and again in 2004 to this specific issue. That eVective? would be one example. Another area which Mr Ward: I attended the session of the UK perhaps is akin to something which lacks clarity as Committee Against Torture and on the face of it opposed to a specific obligation, such as the one I the response of the UK delegation to the questions have just mentioned, relates to civil remedies and which were put by the Committee during its Article 14 of the Convention Against Torture. In consideration of the report were extremely respect of the recent report of Canada to the impressive; 70 or 80 pages of response were Committee Against Torture, the Committee made prepared overnight to those questions. Regrettably very specific reference to the need to provide civil though, on a number of points there was a lack of remedies to victims of torture in all instances, and 3358395001 Page Type [O] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 3
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
I would suggest to the Committee that would be that not diminish the need to incorporate the something which could be equally applicable to Convention, since the judges will have decided that this country. there could be judicial incorporation in that way? Mr Ward: Certainly in respect of the question of Q6 Lord Lester of Herne Hill: Are yousaying there admissibility of evidence which may have been are not eVective civil remedies in this country for obtained under torture, it would satisfy that the victims of torture? concern. My colleagues have clearly thought in Ms Ferstman: Certainly this is one issue which is more detail about the various ways in which there also subject to the courts and there is a current case is a disconnect, or a mismatch as youputit, which is proceeding through the courts in relation between UK law and its international obligations to British nationals who allege torture in relation in respect of the Convention. It seems to me that to Saudi Arabia. What is suggested is that the State incorporation would neatly satisfy all those Immunity Act operates as a bar to the full concerns and not require they be resolved on a case implementation of Article 14 of the Convention by case basis. In that regard, just briefly to note one Against Torture. of the exchanges which took place during the Mr Zilli: I would like to make just one point. I torture evidence case in the House of Lords, the Government’s barrister made a submission to the think perhaps it is the Government that has to enter V into an exercise whereby its compliance with the e ect that it was not necessary to have a rule of provisions of the Convention is not simply a law in respect of the exclusion of torture evidence bureaucratic exercise conducted every X number of because as a matter of policy the UK Government years when the State Party report is going to would never use such evidence. Then, when he was examined by the Committee. Therefore, the pressed by their Lordships, he said that it would Government should look at all these obligations not be good to have a rule of law because the holistically and conduct a review to ensure that in Government might want to change its policy at fact its domestic provisions in primary and other some future date. So it does seem to me that there legislation are in compliance with the Convention. is a sensible case for incorporation. With respect to the universal jurisdiction provisions, of course Lord Lester has pointed out Q8Lord Lester of Herne Hill: When yousay the Criminal Justice Act which incorporated the “incorporation”, youdo not mean, do you,every universal jurisdiction provision found in the part of the Torture Convention, because some of it Convention. I think the issue there might be that is mere machinery, youmean incorporation of the in fact the universal jurisdiction is permissible substantive provisions to the extent they are not rather than mandatory and I think that might be already part of our law? an issue that the Committee might want to query Mr Ward: To give them eVect. further, since in fact the duty under the relevant Convention provision is one whereby actually if Q9 Lord Lester of Herne Hill: Do youalso mean evidence exists that there is reasonable suspicion some of it could be done by administrative means that someone has committed acts of torture, it is as well as by legislation, or not? the duty of the authorities to investigate and Mr Ward: It is not a question I have given prosecute that crime or to extradite to another enormous thought to. My colleagues may be able country rather than have a permissible exercise of to answer that question. jurisdiction. Also I am conscious of the fact that the Chairman has remarked that the ambit of this Q10 Chairman: Do not give an oV-the-cuV answer, inquiry is basically UK jurisdiction-wide. I think if youwant to think aboutit, do so. there is certainly an issue of mismatch between Mr Zilli: I think it would be laudable and certainly what the UK authorities perceive as their plausible for the Law Lords to actually rule as you obligations domestically and internationally vis-a`- suggested. However, it would be on a case by case vis their conduct abroad, and that has been noted basis, and in any event it would perhaps be more by the Committee Against Torture. advisable if there is a need for primary legislation Chairman: I should have made it clear, it is the to be discussed by the legislature to give eVect to terms of reference of the Committee as a whole, not the provisions where full eVect has not been given, just the terms of reference of this inquiry. By and one of these provisions clearly is Article 15 of definition our Committee has to follow those terms the Convention Against Torture. I do think the of reference. Convention speaks of not only legislative but also social and other administrative measures so it Q7 Lord Lester of Herne Hill: These questions are would be, as you pointed out, a broader exercise quite important because if the 3 NGOs or any of and not simply a question of introducing you are able to give us a paper which states your legislation. own point of view, we can then put that to the Government, but in the absence of something Q11 Lord Bowness: Can I address my questions to specific it is diYcult for us to do that. Suppose the Ms Ferstman and REDRESS. Youhave already Law Lords in the pending appeal were to decide mentioned section 134 of the 1988 Criminal Justice the Convention Against Torture can be taken into Act and the fact that within that Act there is a account and should be taken into account by UK defence of lawful authority, justification or excuse courts in all proceedings where it is relevant, would to a charge of torture. You know that the 3358395001 Page Type [E] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Ev 4 Joint Committee on Human Rights: Evidence
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
Government say that is necessary because it is a Ms Ferstman: I do not take a view with respect to very wide definition under the Act, broader than the wider aspects. I would take the view however the Convention and they say that Section 3 of the that full compliance with the Convention Against Human Rights Act means the courts would Torture definition would be appropriate because interpret section 134 compatibly. In your written the UK has ratified the Convention Against evidence you submitted the Criminal Justice Act Torture. Right now it is wider in certain aspects but should be amended to make it clear that the defence narrower in others. does not permit treatment which is prohibited under the Convention. Why is it you do not believe Q14 Lord Lester of Herne Hill: Am I right in saying that interpretation of section 134 compatibly with that the Committee Against Torture and the UN Section 3 of the Human Rights Act would be Human Rights Committee, and for that matter the suYcient? committee dealing with race, have all said that Ms Ferstman: The Committee Against Torture States Parties must ensure that extra-territorial itself in its commentary on this particular issue breaches are dealt with and not just territorial referred to those instances when the Human Rights breaches, and that the problem is that the Human Act would itself not apply as one of the reasons Rights Act has been interpreted as being territorial why it would be appropriate to look at the matter in scope and that is the subject of a pending appeal inclusively within section 134. We know of the or appeals to try to see whether the Human Rights proceedings which are taking place in respect of Act has extra-territorial claims. So far as Iraq and in that particular case there is a suggestion international law is concerned as distinct from our that the Human Rights Act does not apply in domestic law, it is clear, is it not, that extra- respect of those proceedings. So I would submit territorial liability exists on each state which is that it is feasible there will be proceedings that party to the Convention? would be necessary to take this into account. With Ms Ferstman: I would share that view, however one respect to section 134 more broadly, I do think of the issues in the case which is still pending is the there are a number of issues beyond the lawful applicability of not only the Human Rights Act but authority which require further consideration. One the European Convention. relates to the Attorney-General’s consent and that issue which is quite strong in relation to the Lord Lester of Herne Hill: Yes, I meant that. When requirement to extradite or prosecute. The second I say Human Rights Act, I mean also the issue is the fact of how the courts in this country Convention as applied to UK law. Thank you. have interpreted the jurisdiction so that only cases that are post-1988 can be taken into account in Q15 Baroness Stern: I would like to move on to the respect of using universal jurisdiction; so only after rather big question of expulsions and the use of the Act has come into force. So there are diplomatic assurances and start by reminding you potentially certain holes. that Article 3 of UNCAT sets out the obligation not to return anyone to a state where they face torture. I think it is worth reminding ourselves Q12 Lord Bowness: Youhave mentioned the Iraq what that says: “(1) No State Party shall expel, case. Is the principal problem with crimes of torture return (‘refouler’) or extradite a person to another or alleged crimes which have taken place outside State where there are substantial grounds for the United Kingdom? Have yougot any evidence believing that he would be in danger of being where the terms of that defence have presented a subjected to torture. (2) For the purpose of problem in practice in particular cases? determining whether there are such grounds, the Ms Ferstman: In respect of those Iraq cases, competent authorities shall take into account all another issue is the fact that the crime of torture is relevant considerations including, where not being considered currently in those applicable, the existence in the State concerned of prosecutions, so in a way it is something which is a consistent pattern of gross, flagrant or mass mute in that case despite the allegations which have violations of human rights.” You all argue that the been put forward. We do not have a specific Government’s current eVorts to conclude example but I would submit that there are a Memoranda of Understanding allowing for number of foreseeable areas in which we could see diplomatic assurances that individuals will not be this could pose a problem in the future. tortured on their return will breach the UK’s obligations under Article 3 as well as other obligations. Youalso all agree that the diplomatic Q13 Chairman: What the Government say is that assurances are being used as a means of eroding the the reason they have the defence in section 134 is absolute nature of the legal prohibition against because their definition of torture is broader than torture by allowing for a balancing of that of the Convention, ie it includes considerations of the risk of torture following unintentionally inflicting pain. So what would you deportation on the one hand and the interests of say if the Government were to approach it in a national security on the other. You also all point diVerent manner and say that they will change their out the substantial practical diYculties as torture is definition of torture to the narrower definition in usually done in secret, these states have already the Convention and abandon the additional signed up to international treaties and torture is defence? often practised without authorisation from on high 3358395001 Page Type [O] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 5
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli by local law enforcement and security personnel. I that they have an opportunity to speak privately think it is fair to say youall concludethat with the monitoring agency, whoever that will be, diplomatic assurances are legally unenforceable about their fears or, in fact, their ill-treatment and there are no sanctions or remedy if the knowing that information is going to be receiving state breaks the agreement. I would just transmitted back to the government of the like to point out to you that the Home OYce detention facility in which they are in, knowing that position is that the courts will give proper weight their relatives, who are not in detention, may be to diplomatic assurances given by governments in targeted as a consequence of that. I think that it is good faith and, indeed, the Home Secretary told us very important that when we talk about post return that if the courts were to discount diplomatic monitoring we understand what we really mean assurances that would be to take a neo-colonial and what we do not mean. There are some other approach. My first question is to Human Rights diYculties with post return monitoring. One of the Watch, but I am sure the other organisations might most important ones is illustrated by the famous have a view. Youwill know that the European cases of the two Egyptian men who in December Committee for the Prevention of Torture, the CPT, 2001 were bound, gagged, hooded, drugged and stated that it had an open mind on whether a dragged oV the streets of Stockholm on to a US diplomatic assurance could be formulated in such Government leased aircraft and flown to Cairo. a way as to be eVective, although it had not yet seen The Swedish Government, having denied them one in an acceptable form. Would you agree with access to asylum using the exclusion clause (of the that in principle, or will diplomatic assurances Refugee Convention), obtained promises from the always entail unacceptable risks? Egyptian Government that the two men would not Mr Ward: First of all, thank youfor that summary be tortured and that they would be given fair trials. which obviously has spared the Committee a lot of There was no post return monitoring mechanism time in setting out our views. The issue of post in the original assurances oVered by the Egyptian return monitoring is clearly the most contested area authorities but, subsequently, an arrangement was presently in the debate over the use of diplomatic made whereby the Swedish Embassy in Cairo went assurances. I think it is important to begin by to the prison where the two men were held. saying what these proposed post return monitoring Unfortunately, the first visit did not take place until mechanisms are not. What they are not is anything five weeks after the men were sent back and, as that is comparable to the kind of systematic Members of the Committee no doubt are aware, institutional-wide monitoring that the detainees are most at risk of ill-treatment during International Committee of the Red Cross the first few days of their detention. When the undertakes. The International Committee of the Swedish Minister of Justice was asked subsequently Red Cross will not undertake monitoring in a why it was that they had not gone to see these men detention facility unless they have global access to for five weeks, his answer was extremely telling. He all of the prisoners in that facility. There are a said: “We could not have gone sooner because if number of reasons for that. One of the reasons is we had gone sooner it would have sent a message a moral one, which is that it is not morally to the Egyptians that we did not trust them”. We acceptable to be in a situation where you are are talking here about diplomatic assurances, monitoring a select group of detainees within a promises made from one government to another, facility while allowing the other detainees in the and diplomatic relations are something which facility to be subject to whatever treatment they governments set great stock by and do not want to may be subject. That is one of the main reasons ruZe or interrupt by making unwarranted why many non-governmental organisations allegations of torture and ill-treatment. One more absolutely refuse to have anything to do with this point before I let my colleagues talk about it. The form of monitoring. The second reason is a issue of independent monitors under these practical one, which is that if youare conducting Memoranda of Understanding is very interesting. interviews with detainees, assuming that you have So far we have Memoranda with Jordan and Libya. confidential access to the detainees, youare In Libya there are not any independent monitoring the entire population, if reports of ill- organisations. The most independent organisation treatment come to your attention and you have in Libya is run by the son of Colonel GadaY. interviewed 100 prisoners, youcan take those Furthermore, in respect of t he Jordan reports, as the International Committee of the Red Memorandum of Understanding, and I know that Cross does, to the prison authorities without fear we are going to talk about this later perhaps, the that the person who provided that information to monitoring mechanism does not provide for public youwill be clearly identified and will be subjectto reporting, it merely pr ovides for the reports reprisals or, indeed, their family members will be conducted by the independent monitor to be fed subject to reprisals. That is not the case in respect back to the two governments, which brings me to of the kind of monitoring which is proposed under another diYculty with post return monitoring, these diplomatic assurances, or these Memoranda which is that neither the sending state nor the of Understanding as the UK terms them. They are receiving state has an incentive to bring to light talking about monitoring of a specific individual or allegations or instances of ill-treatment because in group of individuals after that person or those the case of the sending state to do so amounts to an persons are returned. It begs the question as to admission that it has violated its obligations under whether or not the person will be willing, assuming international law, and equally in the case of the 3358395001 Page Type [E] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Ev 6 Joint Committee on Human Rights: Evidence
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli receiving state it amounts to an admission that it you, being reputable and independent—is there a has violated its obligations under international law. risk that the Government will be left to rely upon When one puts together all of these facts and when less independent or less trustworthy organisations? one considers that in those cases where it has been Mr Zilli: I think that question goes to the core of possible to determine the fate of the detainees after the attitude of the Government. You need to go return, there have been credible allegations of ill- back to the judgment given in the Youssef1 case to treatment or torture in custody. In the case of look at the real attitude of the Prime Minister with Maher Arar, the Canadian-Syrian dual national respect to diplomatic assurances. That was a false who was sent from the United States to Syria via imprisonment claim brought by some Egyptian Jordan, the Commission of Inquiry that the Nationals, one of whom was named Youssef. I Canadian Government established to look into the think that laid bare the attitude of the Prime role of the Canadian authorities, recently the Minister with respect to diplomatic assurances. independent expert who was appointed to that With respect to the case at hand, the Government Commission concluded that Mr Arar was tortured. for nearly four years has recognised—indeed Again, in that instance assurances were made by asserted—that the deportation of those individuals the Government of Syria to the Government of the would be contrary to its international obligations United States. Assurances do not work and we do Y and the non-refoulement prohibition. What has not consider reflecting upon the di culties of post changed since then is the assertion of the return monitoring. Again, the distinction between Government that by relying on diplomatic the kinds of eVective systematic monitoring that the assurances they will be able to ensure that those ICRC does and this kind of ad hoc one-oV post individuals will not suVer the risk that the return monitoring is not capable of sanitising this Government has itself recognised all along. We mechanism which, again, as Lady Stern has said, is not simply exposing individuals to risk, it is also consider that diplomatic assurances in such cases fundamentally threatening the absolute nature of are erosive and evasive on the non-refoulement the prohibition against torture. prohibition. They are inherently unreliable and V Baroness Stern: Can I feed in some more very ine ective and clearly, as pointed out by Ben, specific questions where the answers are probably discriminatory with respect to anybody else who quite short, which is not a reflection on the last happens to be held in detention in these countries. answer which was very helpful. The question should be how to prevent the Chairman: We are going to come back to Libya and occurrence of torture while in detention. The way Jordan specifically. to prevent the occurrence of torture in detention, in any place of detention, would be to comply with Q16 Baroness Stern: I just want to get this on the the safeguards provided in a whole host of record. Are youaware of any cases where international and domestic standards. For diplomatic assurances have proved eVective in example, youhave safeguardswith respect to access practice? to the outside world. The question one should ask Mr Ward: No. is what is happening with respect to Mr Zilli: Yes but in cases of diplomatic assurances incommunicado detention, notification of family with respect to the death penalty but, as we and lawyers, visits, fair trial, due process discussed in the previous session, this is a diVerent guarantees and so on and so forth in these mechanism or process altogether. countries. Those steps would be the eVective Ms Ferstman: No. safeguards that would enable a Government to say “We are complying with the international Q17 Baroness Stern: In the same mode, I want to obligations”. The actual seeking of diplomatic move on to discuss who might be independent assurances is only as a result of the actual monitors. Is it right that Human Rights Watch and admission by the relevant authorities that a risk Amnesty International both made clear that they exists, a very substantial risk exists. will not act as independent monitors for diplomatic assurances? Is that correct? Mr Ward: That is correct. I was in Geneva recently Q20 Lord Lester of Herne Hill: While we are on and had a meeting with the ICRC and they said to this, I simply do not understand the Amnesty me that they would not participate in any such position and, therefore I want to test what youare process. saying. Surely Amnesty would be thrilled to bits if it had any access to people who were at risk of Q18Baroness Stern: What did yousay as to torture in the ordinary way and would want to whether youwouldparticipate? impose its own conditions on access in order to get Mr Ward: We also will not participate. into a detention or torture or other place? What I Mr Zilli: No, we will not participate. do not understand is why you do not see the Ms Ferstman: No. opportunity and say, “we do not approve of these mechanisms but if we are asked to do so, we would Q19 Baroness Stern: Thank youvery much.How like to give it a try and seek to impose proper diYcult do you think it will be for the Government conditions of access”, then youare in a position to to find any reputable and independent monitors for diplomatic assurances? If you all refuse to do it— 1 [2004] EWHC 1884 (QB)] 3358395001 Page Type [O] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 7
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli complain if youdo not get them. I do not respect to the monitoring process an d the belief that, understand this boycott position as being a sensible in fact, these monitoring mechanisms will not do one for Amnesty to adopt. what they need to do to protect the individuals. Mr Zilli: We beg to disagree. I think what we call Whether these monitoring mechanisms have a for is full compliance with human rights and broader impact generally is really beside the point human rights safeguards. We call for that because it does not actually take you back to where compliance with respect to the United Kingdom youneed to be to protect the i ndividuals who are Government and other governments. In those being sent back. That is what I would suggest is the countries, such as Algeria, Libya, Jordan and so biggest problem. If there is no faith in the merits of on, we would be calling for the safeguards with the monitoring to protect the individuals who are respect to people in detention to be upheld and that being sent back, the broader impact more generally, would clearly also mean access to independent non- more diVusely, is less relevant. There are other governmental organisations. We would not simply mechanisms. Many of these countries have ratified participate in a process which is flawed for the start. the relevant conventions. There is the optional protocol which is to set up a system of monitoring Q21 Chairman: Can I follow up Lord Lester’s and there are all sorts of ways in which broader question to you in this way. If there was a mechanisms can be done. When youare talking Memorandum of Understanding and so on, as we about sending someone back it is here, in my know we have with Jordan or Libya, could you not submission where the problem is. make a quid pro quo condition to youbeing the Mr Ward: I can only repeat that and say we would monitoring body to say, “Okay, we will monitor this be delighted if the United Kingdom Government particular individual but only if we have access to would put human rights at the top of its agenda in its everybody else in the prison?” That would put both relations with these countries. Obviously there is the our Government and Jordan or Libya very firmly on mechanism of the European Union and the the spot. Would that not be a way of using this as a neighbourhood programme and so on. There are lever to raise human rights matters generally in the clearly mechanisms and levers which could be used particular prison concerned? and if there was a genuine commitment on the part Mr Zilli: That is not Amnesty’s modus operandi.As of the UK Government to help Libya improve its I said, I think we consider that by default, by their torture record systematically by putting in place all very nature, reliance on diplomatic assurances, the of the mechanisms required that would be extremely seeking of diplomatic assurances, betrays the very laudable and we would welcome and support it. As real fact that diplomatic assurances are being sought Carla said, that is not the point. We are talking here with respect to the non-refoulement prohibition about Britain’s obligation not to expose people to the risk of torture and how it meets that obligation where such risks exist. What we will call for is to take V preventative steps to ensure that torture or other ill- and whether it this is an e ective mechanism for treatment does not occur in custody and I have protecting people at risk, and it is not. already made reference to the safeguards. Diplomatic assurances are a panacea when, in fact, Q23 Chairman: Can I ask youone specific question. the institutional framework should be an Do youknow of any organisation or anybody who independent, impartial and judicial through is prepared to do this? enforcement and which complies with relevant Mr Ward: Our understanding is that there is a small international human rights standards. There is Jordanian organisation that has agreed to carry out nothing else I can add. monitoring with financial support from the UK Government. I would note, in relation to that, we Q22 Baroness Stern: Can I wrap up this whole know that in Egypt one of the main Egyptian human section by broadening out the discussion we just had rights organisations, that is headed by the former with our other two witnesses. The Home Secretary’s UN Secretary General, Boutros Boutros Ghali, was view when he came to see us was people concerned approached by the British Ambassador in Cairo and with the human rights perspective should welcome their reply when they declined eventually to carry the Memoranda of Understanding because, he said, out that monitoring, I think was very interesting. “They will result in a much stronger relationship on The reason that they gave, as I understand it, was the human rights agenda”. Is there any case to be they did not want to jeopardise their relationship made that these bilateral arrangements could help to with the Egyptian Government. In other words, they did not want to find themselves in a situation where raise standards more generally in countries who V practise torture by initiating a debate on the in order to do their monitoring e ectively they treatment of detainees and by allowing the would jeopardise their relationship with the independent monitors access to a prison where they Egyptian Government. That is a small Jordanian might see the person they are concerned about, and human rights organisation. I am not aware of any they might see everybody else as well? Is there any international human rights organisation that has argument, do you think, to say that it would forward been willing to carry out such monitoring. the cause of human rights? Ms Ferstman: If I may, I think part of the problem Q24 Chairman: Can I put a specific question to you is the linking of the monitoring to individuals and because earlier you did not have a chance to answer part of the concerns which have been raised by the this specific question which I put to Mr Zilli in very other speakers relate to the fundamental flaws with sharp terms and Lady Stern in similar terms to 3358395001 Page Type [E] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Ev 8 Joint Committee on Human Rights: Evidence
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
Carla. If what yousay is right, and nobody is a country,in order to determin e whether or not a proposing that youare wrong, that putsyouvis-a `- person is at risk of torture you do not need to go vis our Government, and to that extent the receiving beyond the fact that there is a systematic practice in Government in a very, very strong bargaining that country, generally speaking when you are position indeed to drive a very hard bargain for your making an assessment about whether or not a person services, as it were, in terms of this monitoring can be returned, you have to look to that particular process. I understand your very pure position in individual’s circumstances to determine whether relation to monitoring but I would have thought the they themselves are at individual risk. Certainly object of human rights organisations was to get into when we talk about the former Belmarsh detainees these prisons, find out what is going on and blow the we recall that the very reason for the indefinite whistle. If it was possible for you, therefore, to use detention mechanism was because the Government this process to say to our Government, “Okay, we said that there were individuals whom it could not know you have got a problem, we will do it but only prosecute and could not deport because to do so on condition we are allowed free unfettered access would cause it to be in breach of its obligations into these prisons to report on everybody in there under the European Convention on Human Rights, and whatever we find”, what is wrong with that? and equally under the Convention Against Torture. Mr Ward: Well, if it was something which was not We are talking first of all about individuals who in doing serious damage to the international many cases are wanted on terrorism charges, in some prohibition of torture then it is something that we cases have been tried in absentia, who clearly are might be willing to have a discussion about. The identified by the British authorities as being diYculty is that even if one puts aside the damage suspected of involvement in international terrorism. which it is doing to the prohibition, and I think that One thinks, for example, of the Algerians who were is an important element, we are not talking about the acquitted following the so-called Ricin plot who we risk to the individual and whether that risk is understand the Government wishes to deport. These ameliorated by the mechanism, we are talking here are individuals who by virtue of characteristics that about damaging the nature of the prohibition itself. they themselves have, or characteristics that are I hope we are going to talk later about the current imputed to them, are already at risk of torture. case in the European Court of Human Rights, the When one makes an assessment about the Ramzy case, because there is another aspect of that. eVectiveness of diplomatic assurances as a safeguard Would the Government of Libya give unfettered, against that ill-treatment, one does not need to go without notice, access to an independent, into looking at the objective evidence on a country international human rights organisation to go and the situation in each of those countries. Having anywhere in its detention facility at any time to said that, when one does look at the situation in interview anybody in private and make the findings those countries, one can see that these are countries public? I think it is very unlikely. Again, we are not that have very serious problems with torture, talking here about a tool for improving human particularly with people who are labelled as Islamists rights, we are talking about a tool for circumventing or have a suspected involvement in terrorism. In the non-refoulement obligation, as the UN Special fact, as the UN Special Rapporteur on Torture, Rapporteur on Torture has said. Manfred Novak, has said, it is exactly because these Chairman: In answer to your question, nobody has countries have these records on torture that the actually asked in this context. I would like to bring Government feels that it is necessary to conclude Mr Norris in to particularly focus on Libya and these Memoranda with the countries as a means of Jordan. facilitating the deportations, transfers or extraditions. In other words, if youwere talking about proposed deportations to Italy, or proposed Q25 Dan Norris: My questions relate to the deportations to Norway, it would not be necessary Memoranda of Understanding and youhave to obtain Memoranda of Understanding. Human touched on those already to some extent. Could you Rights Watch and Amnesty International have draw on your experience of how people are treated extensively documented the situations in those as detainees in the countries where we have already countries and we would be happy to provide detailed agreed Memoranda of Understanding or are part information to the Committee about that research. I way through? I am thinking specifically of Jordan wonder to what extent it is helpful to really go into and Libya, which youhave made reference to the detail of the torture records of these countries already, and Egypt, Algeria and Morocco who are in given our limited time that we have. the process of agreeing. Could you think carefully Ms Ferstman: If I may, I think another point which from your own experience about the risks that is worth discussing a little bit is the remedies that people deported from this country going to those exist in these countries with respect to torture and countries would face. Tell me what you think the the extent to which victims of torture have access to dangers are. justice in any real way. Certainly there is no Mr Ward: In a way, I think that the question is European Court of Human Rights that applies in somewhat misplaced because of the point that my these countries, nor for the most part are there colleague made earlier. We are talking about functioning legal systems that in a very detailed way individuals who the Government already recognises provide access to justice for victims of torture whilst to be at risk of torture. While it is true that it has been they are in detention or afterwards. This is determined by international human rights bodies something that I would suggest should equally be that where there is a systematic practice of torture in taken into account as part of your considerations. 3358395001 Page Type [O] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 9
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
Q26 Dan Norris: I cannot speak for the rest of the whether there is a provision that would guarantee Committee but I am sure any submission you make habeas corpus, whether there are provisions with would be helpful. I feel anyone reading the transcript respect to notification of the family, lawyers, access of our discussions would not have a good feel for the to doctors, personal and confidential kinds of risks that may be faced in general. I communication with counsel, and so on and so appreciate you are talking about individuals, and I forth, including all relevant due process safeguards. perfectly understand why you want to do that, but That is the issue. We are talking about countries for busy people trying to make sense of very where there are very serious and systemic flaws and a complicated situations without the benefit of your systemic lack of compliance with relevant minimum experience and knowledge, it would be extremely international human rights standards with respect to helpful if in general you could give some kind of idea people in detention, for example, in order to ensure about the concerns you have about each of the that human rights can be upheld. I think my countries that have either signed up already or are in colleague, Carla, has also referred to the lack of prospect of signing up. institutional framework with respect to the duty to Mr Ward: We would be happy to do that. This is provide reparation and redress in cases of torture from the most recent US State Department report: and ill treatment where it occurs. “Reported methods of torture in Jordan include beatings, sleep deprivation, extended solitary Q30 Dan Norris: Without needing to repeat yourself, confinement and physical suspension”. Libya has an and I hope youdo not feel youneed to becauseyou extremely poor record on torture. In a number of made a very clear point, in terms of the these countries torture is systematic, certainly in Memorandum and the terms of the Memorandum, Saudi Arabia and in Egypt. We are really talking do youfeel that they are an advance on previous about countries that are in flagrant, flagrant breach assurances against torture, particularly the of their international obligations in respect of provision for independent monitoring? I think you torture, particularly in respect of people who have a partly touched on it earlier. Can you state why rather national security profile. than just a general answer? Mr Ward: Oddly, I think they are an advance but Q27 Baroness Stern: Could we ask for the definition not in a positive way, in a negative way because what of physical suspension? they do is try to systematise an extremely Ms Ferstman: Often when referring to physical problematic practice. All of the concerns which we suspension, persons are suspended from the ceiling and international human rights experts and bodies with their arms behind their back and their legs up have had about the way in which the practice of and then they are beaten in that position. That is a states seeking assurances does damage to the torture practice that has been used in several countries. I prohibition are made all the more trenchant by the assume that is what is referred to there. fact that these are blanket agreements that cover all detainees who can be sent back to a particular Q28Dan Norris: Assuming that you were happy country. There is, in eVect, an eVort to try to create with the agreement, which I hear youare not saying, a veneer of international law to make what are what chance do youthink there wouldbe of the essentially mere promises and mere assurances to relevant governments actually ensuring that their look like a treaty or a binding international oYcers on the ground were applying the rules in any agreement. I think it is also important to look at case? How would you feel about that? Do you think exactly what these agreements say. The thing that is even if there were well-meaning people in most striking about the agreement with Jordan is government it would be impossible to make these that the word “torture” does not appear anywhere in agreements stick, as it were? it and “death penalty” does not appear in it. Mr Zilli: I think it goes back to— Q31 Dan Norris: Can I ask youwhat words are used Q29 Dan Norris: Youare talking abouta systemic if torture is not used? thing. Mr Ward: It talks about humane treatment in Mr Ward: Where youare talking aboutsystematic accordance with international obligations. That is torture then I think the answer would be no, the the point, really it does nothing more than re-state government would not be capable of honouring a that these countries are bound by their international promise even if it were made in good faith with every obligations. In fact, it says that the UK will intention of carrying it out because there would not undertake to respect its international obligations, be the sort of control necessary. Where the practice and so, ironically, one could make the argument that of torture is systematic it means that it is routine in the agreement, if one is to respect it fully, would the conduct of the operations of the security forces, prevent the UK from sending people to Jordan it is not that an order is given that a particular person because to send people would not be in accordance should be subject to ill-treatment. with its international obligations. Mr Zilli: I think there is a correlation between the lack of adequate safeguards and institutional Q32 Dan Norris: Coming back to Jordan and Libya, deficiencies and the occurrence of torture or ill- we understand the monitoring has been agreed. Do treatment in custody. You have to look at things like you think that there could be particular guarantees how long can people be held without charge, in individual cases? I notice your emphasis on the whether incommunicado detention is allowed, individual in the context of all of it. Could there be 3358395001 Page Type [E] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Ev 10 Joint Committee on Human Rights: Evidence
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli particular guarantees in individual cases that would adopted essentially a separation of powers approach prevent any breach? Do youthink that couldbe and said where the executive branch of Government possible? has entered into these assurances, and where they are Mr Ward: Our view is, and this is based on our specific, the courts will not essentially review them. extensive research of the use of these mechanisms, These are not cases about torture, there are cases that they are essentially neutral. They have no about fair trial, and that is related to due process. I impact on the question of risk in a particular case imagine what you would say—I would like your and, therefore, they are not a factor that should be answer—is that was not torture and times have taken into account when considering risk. If there is changed and you cannot expect the UK courts now no risk, then there is no obstacle to the person being to adopt that approach. How do youdeal with the returned. If the risk falls below the threshold problem of our courts essentially reviewing the required under the Convention Against Torture or executive branch in deciding what should be done in the European Convention then the person can be the context of the Torture Convention. I am talking returned. Our view, and again this is based on our only about UK courts and then I am going to ask detailed research of this question and our you in a moment about the European Court. It is a discussions with international human rights experts, question of UK law. is that diplomatic assurances have no eVect on the Mr Zilli: In respect of UK law, Lord Justice Sedley question of risk. certainly ruled in the case of Ramda that, in fact, the extradition would expose the person to such a Q33 Dan Norris: Thank youfor that. My final fundamental unfair trial that that could not be question is would the diYculties with these and other contemplated. Clearly, the judiciary in this country issues that we have been talking about be addressed does exercise a supervisory function with respect to by minimum international standards for diplomatic the actions in cases involving deportation. I do not agreements against torture? see why the judiciary would shy away from Mr Ward: That is another area which, like post scrutinising the actions of the executive if they have return monitoring, is on the table at the moment. exercised such scrutiny quite eVectively with respect Youmay be aware that there is going to be a meeting to say, a fundamentally unfair trial. I cannot see that later this year in Strasbourg at the Council of Europe the UK judiciary, even leaving aside the question of of the Working Group on Terrorism and it is our the Convention, just by the very nature of its case understanding that this question is precisely the one law as a matter of English law, would shy away from which is going to be discussed. exercising their discretion in looking at the question of refoulement as they have in the past. Q34 Dan Norris: So it is on the table but your view Mr Ward: Youmay be aware that there is an is that it will not be addressed? extradition case called Zakayev involving a Mr Ward: No. Our view is that there is no way that Chechnyan who the Russian authorities wanted to these devices can be set aside, there is no way they extradite back to Russia in 2003 and that case was can be made consistent with state’s international heard at Bow Street in the extradition court. The obligations. Again, it is not simply that their using a interior minister came from Moscow and gave particular case exposes a particular detainee to a risk witness evidence in the form of assurances that Mr of torture, but the very practice of states seeking Zakayev would not be subject to ill-treatment if he them threatens to create, eVectively, a loophole was returned to Russia. Those assurances were not within the Article 3 prohibitions. States have an accepted by the court although the court said it obligation of non-refoulment but if they seek an accepted that they were given in good faith, and the assurance they eVectively can bypass that extradition was blocked on that basis. Clearly one obligation. That is our view. That is the view of a can imagine the Special Immigration Appeals growing number of international human rights Commission would feel that it was capable of experts. That is why we are so emphatically opposed making a determination of risk based on its own to these mechanisms. jurisdiction.
Q35 Lord Lester of Herne Hill: The traditional Q36 Lord Lester of Herne Hill: If I can turn to the approach of our courts in this country to specific Chahal issue, which you have already mentioned. As assurances given when someone is being sent to we all know, the UK, with some other European another country, or territory, and has been to give states, has sought to intervene in a pending Dutch full faith and credit to the international agreement or case, Ramzy, seeking to persuade the Strasbourg assurance. For example, there is a case called court to depart from the absolute nature of its Kotronis2 where someone was being sent back to judgment in Chahal and instead decide that a Greece under the Junta. There is a case called balance should be struck between prohibition Launder3 where someone was being sent back to against torture and the need to protect national Hong Kong after the PRC resumed sovereignty, and security. What do you think are the practical in those two cases, one fairly recent, the Law Lords implications if the UK Government argument were to succeed? Probably one of you will do on this. 2 R v Governor of Brixton Prison, ex p. Kotronis Mr Ward: I think one of the most important things [1971] AC 250 (HL) to emphasise about the attack on the non- 3 R v Secretary of State for the Home Department, ex refoulement prohibition is that the implications of it p. Launder [1997] 1 WLR 839 are likely to be felt much more widely than is perhaps 3358395001 Page Type [O] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 11
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli understood. We are not simply talking about its deported to face torture in exceptional application in the role of national security cases. In circumstances whereas the New Zealanders refused relation to diplomatic assurances, we have already to follow Suresh expressly and said, on the contrary, seen both Canada and the United States seeking the obligation is absolute. Am I summarising your assurances in respect of non-national security cases position? where there is a risk of torture. We would certainly Mr Ward: The UN Human Rights Committee take the view that if a balancing test were permitted reviewed Canada this month and expressed concern to be introduced into the European Court’s about the decision and, indeed, the legislation which jurisprudence, if the non-refoulement obligation was followed the decision and said that it amounts to a made less than absolute, we would be very grave breach of Article 7 of the Covenant, which is concerned that the implications would be felt by a the part that deals with torture. The UN Committee very large potential population of individuals and against Torture, having sat in the committee room, not simply in the narrow realm of national security. I were frankly incredulous that the Government of think that is one very real fear, one very real concern Canada sought to defend this decision which is about that. I know there is real concern among those plainly inconsistent with their international who practise in refugee and asylum jurisdiction that obligations. eroding non-refoulement in respect of torture may have very, very damaging long-term consequences Q40 Lord Lester of Herne Hill: Have youread the for the people who they represent. Zaoui decision? Mr Ward: I have not. Q37 Lord Lester of Herne Hill: If I could locate this in a more practical way than youare at the moment. Q41 Lord Lester of Herne Hill: May I recommend it Take someone who is a really nasty, evil piece of to all of you. It seems to me that its reasoning is quite work in every way who threatens the national powerful. security of this country, and there is enough evidence Mr Zilli: Can I just make a comment. I do not think of that but not enough to try him, and therefore the it should necessarily follow that if the UK and the authorities wish to send him to another country other three governments succeeded in the Ramzy where there is a risk of torture or grounds for case that the UK judiciary should just bow to the believing there is a risk of torture. As I understand Government and allow the deportation of Chahal, what Chahal decides in subsequent cases is individuals. As was made clear, for example, in the that if there is a substantial risk of torture you White Paper, Bringing Rights Home, the point of the cannot send that person back even if that person entrenchment in domestic law of the Convention on threatens national security in this country. Human Rights was that Convention rights would Mr Ward: Exactly. provide a floor and not a ceiling. Therefore, Article Lord Lester of Herne Hill: Therefore, it is not right 3 of the Convention Against Torture should also that the consequence of changing the Chahal test kick in and the courts would be able to consider the would be that the UK or other countries would be non-refoulement principle enshrined and the Refugee able to send such a person to a country where there Convention should kick in as well. are substantial grounds for believing they will be tortured. If that is right, one sees the practical Q42 Mary Creagh: I am going to ask about use of implications that way, but what about the other evidence obtained by torture abroad. Is it ever way? Suppose Chahal remains in its pure absolute permissible to use such information, for example in form, as does Article 3 of CAT, Convention Against attempting to prevent a terrorist attack? Torture, what are you going to do with such an evil Ms Ferstman: As a number of organisations, and undesirable character who cannot be sent back including the ones here, have intervened in a case and threatens national security here? coming before these courts, the position put forward in that case is there is no moment when that evidence Q38Chairman: Before youanswer that, I think you should be used other than in a proceeding relating to answered that one last time, Mr Zilli, the last time we the allegation of the torture itself. The reason why it had that question. Perhaps Mr Ward might like to is so impermissible is, firstly, it is the law, that is what answer. is stated clearly in the international obligations, but, Mr Ward: Very briefly, we have not seen that the secondly, looking at it from the more pragmatic criminal justice system is incapable of meeting the point of view, if you use torture evidence you are threat of terrorism. There is surveillance, subject to saying that it is okay. Basically youare tainting the appropriate judicial safeguards, and there are a process in which youare seeking to usethe evidence. range of criminal oVences, including conspiracy and The reliance of the evidence has the eVect of actually attempt— encouraging torture and also suggesting that the practice by which it was used is alright. In respect Q39 Lord Lester of Herne Hill: I think the Chairman of any— has rightly pointed out that I have asked a question we had answered last time extremely clearly. I take Q43 Mary Creagh: So it is not permissible to use it it from your evidence that you would prefer the to prevent a terrorist attack on London, for judgment of the New Zealand Supreme Court in example, or any other major city? Youthink that our Zaoui to the judgment of the Canadian Supreme security services and our police forces should not act Court in Suresh. Suresh said that people could be upon that intelligence. 3358395001 Page Type [E] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Ev 12 Joint Committee on Human Rights: Evidence
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
Ms Ferstman: On the use of torture if we start from evidence could be used that could be admissible in the standpoint of how this information is going to be evidence. Is that not a diVerent question from the obtained and how it is going to be used, in the questions being put to you by the Chairman? experience of a number of organisations—this has Mr Ward: I think the diYculty with this come up in the inquiry in Canada recently—there hypothetical, which is a variation of the ticking time are examples in which it has been suggested that the bomb hypothetical, is what happens the second oYcials of the Canadian Government have put time, what happens the third time, and what questions to interrogators. In a sense, it is a happens the fourth time. Certainly, by the second distancing from the torture, but a direct use of the time, if not by the third time youare in a relationship information. When the information is used there is a with a government where youare accepting regular complicity in the obtaining of the torture. by information that you know has been obtained under torture and that is wholly inconsistent with Q44 Mary Creagh: That was not my question, with the international system for the prevention and respect. I not giving the example of our security protection against torture. services asking someone else to ask questions through torture. I am saying may our security Q49 Mary Creagh: Is not the duty of the state to services or our police services ever use such evidence protect life, the protection of human rights? Does in order to protect human life in this country? that not take priority in these cases? Ms Ferstman: I think the simple answer to that is no. Mr Ward: By that logic, we ought to be able to torture people to get information from them about Q45 Chairman: Can I ask a question there before what they may know, what information they may yougo on. Let usgive youa specific example. You have. We ought to be able to torture their family talked about Algeria, let us suppose the Head of members if that might be an eVective way of getting Security in Algeria phones up and says, “we have information. just had this person strung up by his thumbs for a few days, he has told us that tomorrow Mr Bloggs of 47 Acacia Drive is going to blow up London Q50 Chairman: That is not what is being put to you. Underground by putting a bomb at Westminster What is being put to you is this, it is nothing to do tube station.” He phones up Eliza Manningham- with us doing the torturing. Suddenly, out of the Buller and tells here that. Is she supposed to entirely blue, we get a phone call from the security service ignore that information with the result that from a dodgy regime overseas that says, “we have hundreds of people may be killed? got this very hard information, your metro is going Ms Ferstman: It is a question of how this to get blown up tomorrow morning”, and your information is used. argument is we should ignore that. Mr Ward: My point is the second time youtake it and the third time youare complicit in the torture,if Q46 Chairman: Supposing you have got that youare not the first time. information, youpass the information to the police, the police go around knocking on the door of Mr Bloggs, they open the door and find he is there in Q51 Mr Shepherd: The first time is the real anxiety. flagrante delicto with a whole pile of suicide bomb This is where I have a diYculty too. You are equipment ready to strap on him for the following travelling beyond people’s comprehension as to morning. I am putting this question to Ms international agreements on international human Ferstman, please. rights agreements, et cetera. The rationality of this to Ms Ferstman: If youhave the information that is most people is this averts a major strike—and it is all coming and youdo not know where it is coming hypothetical as you rightly point out—surely it is the from— duty of those who receive that information to investigate the information and they may or may not Q47 Chairman: No. I am saying the head of Algerian know whether they have been tortured because the security phoned Mrs Eliza Manningham-Buller and nature of regimes is often capricious. It may have told her this. Do youignore it? been elicited in ways other than torture. This is not Ms Ferstman: To use the evidence will encourage the something that the public would understand or torture, so we have to take a position of principle in someone like myself can pussyfoot around it. this respect. Mr Ward: What are the implications of saying, yes, Chairman: So youare prepared to see 100 people of course? What are the implications of asking the blown up on the tube station for your position of hypothetical question and answering the principle? hypothetical question, yes, we should accept the information? Q48Lord Lester of Herne Hill: Surely, a distinction should be drawn between what the intelligence Q52 Mary Creagh: The answer is to protect life. service may do to avert a catastrophe and whether Mr Ward: We should accept it, we should act upon the evidence obtained by torture can be used in it. It then begins the process whereby we say, as I said proceedings in court. As you probably know, the at the very beginning of my remarks, we do not Supreme Court of Israel, which after all has got quite torture people but then if other people torture a lot of experience in this, said that in the latter case people we do not mind. That is simply morally there should be no circumstances in which the unacceptable. 3358395001 Page Type [O] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 13
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
Lord Bowness: Can I say that is a terrible and almost necessary measures are taken, but as the Romans deliberate misrepresentation of the question my said, “Dura lex, sed lex” and this is a matter of the colleague and you put to the witnesses. I have to say rule of law. State oYcials cannot abandon the rule of that as somebody who is very firmly of the view that law and become complicit. I am going back to the we should not be complicit in torture, not use Barak point about democracy fighting with one evidence obtained to secure convictions, to suggest hand behind its back. One cannot become eVectively that youignore the sort of situationthat has been complicit in this. To be h onest, I think what is put forward beggars belief. Nobody outside this misplaced is to resort to this idea of the ticking bomb room would find it possible to understand the scenario. What is taking place, and we know it is attitude you have adopted. taking place, is the interrogation in the complete Chairman: Lord Lester has drawn a distinction, and legal limbo of people held at Guantanamo Bay, I think it is the correct distinction, between using the Bagram air base and other undisclosed locations evidence obtained by torture in court to secure a where people are held. What we do know is that the conviction as opposed to protecting human life. transfer of intelligence is not so spontaneous. We What youhave e Vectively said is you have put your know it from the statement made by Eliza principles in this respect above the protection of Manningham-Buller in the context of the A case4 human life. where it is clear that the attitude of the intelligent services is, “We do not ask questions with respect to provenance”. We do not ask questions, despite the Q53 Lord Lester of Herne Hill: I mentioned the fact that, in fact. Israeli court. If you read President Barak’s letter recently he also makes another point which I think Q54 Chairman: I think we will come back to this youwill disagree with butI think is important he point in particular. I want to get it absolutely clear says, “there may be situations where, in retrospect, where youstand on this major issue.I think Lord an interrogation may be used as a criminal defence Lester put a question and perhaps Mr Ward might of necessity”. What he is saying there is even within give us his firm view on this, which is the defence of this country there might be situations where—I necessity where the torturer himself in the nuclear think the ticking bomb situations is ones that is power station scenario is facing trial and says the unreal in most cases but let us say it is a real defence of necessity applies because, “if I had not problem—someone is, in fact, tortured and then we done this, we would have had a nuclear power prosecute the torturer who says, “They were about station blown up and possibly hundreds of to blow up a nuclear power station and I did it for thousands of people killed”. You say the defence of that reason and by way of defence I say there is the necessity can never apply in those circumstances, defence of necessity”. That is what they are saying. do you? Having said that the prohibition against torture is in Mr Ward: I do not know what view British courts general an absolute one they put that forward. I would take but the international law is absolutely think you would say in no circumstances could the clear, there is no defence of necessity in that. defence of necessity ever be used for torture. Mr Zilli: I think there is a distinction to be drawn between whether the person accused is the torturer Q55 Lord Lester of Herne Hill: Youare saying that i.e. he has committed the crime or is the person who it would be an abuse of power for the Attorney somehow is involved in this so-called spontaneous General to refuse to prosecute on the grounds of lack transfer of the information obtained through of public interest. torture, whether or not that person could, in fact, Mr Ward: I cannot comment on the way in which it rely on the defence of necessity. I think to go back to would be applied in domestic law. the point I made, the premise of the question is misconceived—I do wonder whether someone can Q56 Lord Lester of Herne Hill: Forget about come up with a situation where that has arisen. In domestic law, youare saying that it wouldbe an any event, if that is the case, I cannot see why you abuse of power for any country where this occurred would not be drawing the same kind of distinction to refuse to prosecute on the basis of the wider public with respect to the torture committed by UK interest. I think youhave to say that, do younot? oYcials. If you want to put over and above the duty Mr Ward: No, I do not express a view about that. to protect life, the duty to prevent an act of torture, on a sliding scale, I cannot see why there should be Q57 Mary Creagh: One of the questions we asked any diVerence whether or not the acts of torture are the Home Secretary when he came here was what perpetrated by UK oYcials or oYcials abroad. You systems and processes he had in place personally, are asking this question to an organisation such as and the Home OYce had in place corporately, to Amnesty that has campaigned for 40 years for the ensure that they were not using evidence obtained eradication of torture. The only way you can under torture. There was a fairly light reply on that. eVectively campaign for the eradication of torture is What sorts of inquiries do you think should be put to say there is never any justification whatsoever for in place? If youwere the Home Secretary, what the use of so-called evidence obtained through questions would you be asking to ensure that you torture. The duty of the state is to take all necessary were not receiving evidence that had been obtained measures to ensure that loss of life does not occur, under torture? and we would be the first ones to say it is incumbent upon the state to conduct a review to ensure that all 4 [2004] UKHL 56 3358395001 Page Type [E] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Ev 14 Joint Committee on Human Rights: Evidence
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
Mr Zilli: If I may refer to a decision by the Federal country, for example, the law provides access to a Court of Edmonton, Alberta, in Canada. The case is lawyer will be guaranteed after X number of hours Khadr v Canada. The case concerns an injunction and so on, that interrogations are conducted in a which was granted pending trial with respect to certain manner, in the presence of counsel. I do not whether or not the Canadian intelligence services think that is beyond the powers of inquiry of the could continue to interrogate a Canadian National Secretary of State to ascertain whether or not the held at Guantanamo. The injunction was granted on information was obtained in a lawful manner. the basis that the interrogations in the complete legal limbo the black hole that is Guantanamo Bay Q63 Mr Shepherd: There must be very few countries conducted by members of the intelligence services of in the world that meet these criteria. I am thinking the Canadian Government would be in breach of the of India, the question of governance, et cetera. This rights enshrined under the Canadian Charter of Committee went there and they cannot be held Rights and Freedoms. That is really the starting responsible because they do not know what is point. happening in Bengal or whatever. I just postulate this to you: by the criteria you are announcing, Q58Mary Creagh: I am asking for practical which are absolute, almost no-one can meet them. examples. Mr Zilli: Certainly I think there are serious concerns Mr Zilli: In practice I would say that there should be with respect to admissibility of evidence even in this put in place something akin to a rebuttal country with what is being contemplated, for presumption on the basis of which if information is example, in the extension of detention for up to 28 gleaned from outside, such as Guantanamo Bay, days. That does not mean for some reason Amnesty Bagram airport, and so on, per se it should be should not be making the point that, in fact, regarded as suspect and, therefore, cannot be used. international safeguards do exist. States themselves It is up to the Secretary of State to discharge a have joined voluntarily by their ratification of this burden of proof him. This burden should stem from Treaty. That does not relieve them. Youcannot say, the duty to inquire to a reasonable standard whereby “Because many states fall foul of this guarantee, we the Secretary of State by discharging it, can should accept the situation as is”. I think the whole demonstrate that, in fact, such information was system of international monitoring, of protection, obtained in a lawful manner. and the obligations arising from the torture prohibition, ie that every state as a member of the Q59 Mary Creagh: Youhave said there is a system international community owe it to one another not of black spots, and that is very clear, but what about to take cognisance of anything that is obtained grey spots where if youask, “Was this evidence through a violation of the prohibition— obtained under torture?” they will say, “Of course not”? Q64 Mary Creagh: Perhaps I can move on and ask Mr Zilli: I do not think that is acceptable. Mr Ward, are there any other long-term strategies that youcan think of to minimise the risk of reliance Q60 Mary Creagh: How do yougo about on evidence obtained by torture? What more could challenging it then? be done by the intelligence agencies to influence Mr Zilli: The challenge is that already there is a very foreign intelligence agencies? clear cut prima facie case made that information that Mr Ward: In relation to the more general question, is gleaned in places which are outside the rule of law it is absolutely right that it should not just be a is information that is de facto compromised. matter for the Home OYce, for interior ministries, it should also be a matter for foreign ministries, Q61 Mary Creagh: We accept that. We understand intelligence services and, indeed, all branches of that. I am asking you about countries which are not government that are in relations with other states. Guantanamo Bay and not Bagram airport, I am Clearly if the witness evidence that Eliza asking you about countries where you may go back Manningham-Buller gave to the House of Lords to the services where there is perhaps legitimate Judicial Committee is indicative and questions are government. When youask people there, “Have you not asked, particularly where there is not a strong used torture”, and they say “No”, what do you do? relationship, that is going to make it very diYcult to Mr Zilli: I apologise. I take your point. The question find out what is happening. Also, it is going to send then is in what circumstances was the evidence a signal or a suggestion that Britain does not really obtained. Did the detainee from the first moment of care very much about the circumstances in which detention have access to all the necessary judicial evidence is obtained. I think more broadly it is really safeguards that we regard as the bedrock of the rule a question for British Government foreign policy of law in this country, for example, and then you get towards these countries making clear that these your answer. countries’ records on torture and their respect for their obligation in relation to torture are something Q62 Chairman: If they are such dodgy characters that the UK considers to be an extremely important then they will not tell youthe truth,will they? part of its relationships w ith those countries and that Mr Zilli: Certainly there is a way of establishing it wants to see them improve their records, and help whether or not there is such a thing as access to them to improve their records. It does seem to me lawyers, whether there is incommunicado detention that it is very diYcult to seriously engage in that or if access to the outside world is guaranteed. In this process if some parts of Government are sending a 3358395001 Page Type [O] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 15
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli diVerent message and saying, “We do not really care. UN Special Rapporteur in respect of human rights We do not really mind. We do not want to know while countering terrorism has specifically asked the what youare doing”. It needs to be a consistent Government aboutthis. That is as far as we are able message coming from all of the branches of to go based on our inquiries. government in its relations with those cases. Q69 Chairman: Presumably you can produce an Q65 Mary Creagh: Do youthink the UK is putting analysis of those flight logs for us which would be out a consistent message? helpful. Mr Ward: I do not feel that it is. When I spoke at the Mr Ward: Yes. beginning of my remarks about the Foreign OYce’s Annual Report, which talks about some of the work Q70 Chairman: As far as I understand it, there is no Y which the Foreign O ce has done in promoting allegation that the UK is complicit in this actively. V compliance, in encouraging states in di erent parts The question is whether we may turn a blind eye to of the world to meet their obligations and working something we did not know about. to eradicate the practice of torture worldwide as they Mr Zilli: I think, to some extent, it is a very diYcult say, then at the same time to read the Head of MI5 issue for organisations such as Amnesty to research saying, “in the Algerian example, no inquiries are because, in fact, what we do know is that people who made”, the questions are not asked, that does not were transferred, say, from Afghanistan, from assist in the process of trying to get that particular Kandahar or Bagram to Guantanamo Bay or, like in country to improve its record. the Agiza case which involved the transfer of two Mary Creagh: Thank you. individuals from Sweden to Egypt eventually, that is the unlawful rendition of these people—they were Q66 Chairman: I would like to ask you some drugged, so it is very diYcult. Even those who have questions about the alleged use of British airports been released from Guantanamo Bay, and I was at for stop-overs by US security services for a conference this weekend when many of them gave extraordinary renditions. We have contacted the testimony on what had happened to them, have Scottish police and they tell us that contrary to what very, very little recollection of the transfer, because has been reported in the Scottish press, the they had to wear earmuVs, goggles, they were Strathclyde Police are not investigating the matter of drugged and so on. They had no idea of the number extraordinary renditions stopping at Glasgow and of stops that the plane had undertaken, if any. I Prestwick Airports but there have been press stories, think it is a question of, again, a duty on states. certainly in the Glasgow Herald, the Sunday Herald, There is a duty upon the authorities to conduct an and also in The Independent on Sunday, that there inquiry and if such an inquiry cannot be conducted are very strong suggestions that UK airports are completely openly, there are certainly parliamentary being used by the Americans to transport prisoners inquiries that can ask for evidence of the security from one country to another. What evidence do you services to ascertain what they do know about it. I have that this is happening other than the indirect think there is certainly a duty to conduct these press reports because what we are very interested in inquiries. I think with respect to the involvement of trying to do is to find out whether there is firm the UK in the unlawful rendition of certain evidence of people being transported or whether you individuals we do know that in the case, for example, see it as press hype. of Bisher Al Rawi and Jamil al Banna, who were Mr Ward: That is a question which I put to my travelling on their own of their volition from the colleagues who work on the US involvement in these United Kingdom to the Gambia, and in the Gambia matters and who have copies of a number of the were unlawfully rendered to the custody of US flight logs of aircraft which we know they use for oYcials and then from the Gambia were transferred prisoner transport. What they said to me was that to Bagram airbase and were eventually rendered to Prestwick, Glasgow, RAF Northolt and Luton all Guantanamo Bay. We have asked the United saw regular stops by planes known to have been used Kingdom to respond to questions that we put to for prisoner transport, in particular, Prestwick, them about the extent of their knowledge, whether Glasgow and RAF Northolt. eVectively MI5 tipped oV the Americans about these two individuals’ travel plans to travel to the Gambia Q67 Chairman: Known to be used or have been used and to this date we have received no reply. However, on this occasion? I do note the Foreign OYce is willing and able to Mr Ward: Known to be used for prisoner provide replies, for example, with respect to the level transport— of representations that they are prepared to make with respect to these two individuals. They have Q68Chairman: In general terms or specific? consistently asserted that they have no duty to make Mr Ward: In general terms. What we do not have is any representations with respect to these any evidence that those aircraft were carrying individuals. I think that is, perhaps, something that detainees when they made those stops or whether your Committee could ask for. they were simply fuel stops. Nor do we know if it was shown that those aircraft were carrying detainees Q71 Chairman: That is why we are asking the when they made those stops whether the UK questions now, to find out where the thread starts authorities have knowledge of the fact that the and basically, from what I understand from Mr aircraft were carrying prisoners. As youknow, the Ward, is the onus in relation to this: the aircraft 3358395001 Page Type [E] 22-05-06 22:58:27 Pag Table: COENEW PPSysB Unit: PAG2
Ev 16 Joint Committee on Human Rights: Evidence
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli which are known in the past to have been used for those cases, to have private investigations which are extraordinary renditions of people being transferred not dealt with through a traditional legal system for torture have called at UK airports but it is not can be— known whether anybody is being illegally transported within those aircraft. Q75 Chairman: Youhave mentioned there have Mr Ward: It is not known when those aircraft landed been failures to prosecute in your evidence, and also in the United Kingdom whether there were prisoners just now, and the collapse of the recent prosecution, on board the aircraft. but is this due to the inadequacies of the military’s ability/desire to investigate properly or is it due to the fact that the evidence simply is not there? Why Q72 Chairman: The next question is, under the do youthink that is? Chicago Convention, and the rules that apply there, Ms Ferstman: I think it is quite hard to disassociate what powers do youbelieve the UK have to make the two possibilities. Part of the reason why those inquiries of the aircraft concerned or, investigations often do not result in fruit is because presumably, the pilot concerned or the person in the way in which they are conducted has charge? Y fundamental flaws. In respect of the Musa case, our Mr Ward: That is a very di cult area. I have to be understanding of that investigation was that it took, honest with youand say that we have not yet reached I believe, eight months for that investigation to bear a firm view about the precise legal responsibility of fruit. With respect to these sensitive matters, these the United Kingdom in relation to those principles. types of flaws tend to impact on the overall process. With respect to whether or not that is a policy or Q73 Chairman: If you could let us have a note on whether that is a failing is not clear to us. Certainly that, we would be happy to hear from you and we some of it can be rectified by further training but one would certainly like to receive that. Can I then go on needs to look a little bit further at the broader issues. to the last issue we want to look at which is the The only way in which to do that, we would suggest, alleged ill-treatment by UK troops of suspects is through a broader inquiry process. abroad and trials in Osnabruek and the courts martial of British troops and obviously they did not Q76 Chairman: We are having an inquiry now, how go ahead. Do yousee that sort of treatment as the broad it will be remains to be seen in this respect but product of institutional failure or something else? I it is an issue that we are looking at. While we are on think that is a question for Ms Ferstman. the legal aspects, could I raise with you that the Ms Ferstman: Thank you. One of the diYculties to International Criminal Court Act 2001 eVectively come to a conclusive answer to your question is the dealt with war crimes and we understand recent lack of full information that we have with respect to prosecutions are being brought on that basis. this and some of the other processes. One of the Obviously we cannot go through the facts of the recommendations that we have made in the past, individual cases because they are sub judice,butdo which we do think is still very much appropriate, is youthink that is going to be a more e Vective way of for a broader inquiry to be undertaken into the dealing with some of these matters? potential role or broader role of a military in respect Ms Ferstman: We do not have a firm view on of these abuse cases. There have been a number of whether it will be more eVective. We will be watching abuse cases that have come to light over the past the processes closely to see how eVective they are in period, not all of them have been subject to court practice. Unfortunately, that is all I can say at this martial. It would be appropriate to take a broader point. view with respect to diVerent layers of responsibility. That is one area which we think it would be useful Q77 Chairman: The last question in this context: I to consider. Furthermore, in respect of the processes mentioned we wanted to come back to the question themselves, we have not been involved in all of the of training. How do youthink training in the processes but we have a number of concerns with treatment of detainees and civilians should be respect to courts martial in principle. While we do carried out to be really eVective in preventing torture not have a firm position with respect to whether or or ill-treatment in general? not court martial is suYciently independent in these Ms Ferstman: Certainly it is something which has to particular cases, we do think that it merits further take place throughout the institution, not something inquiry to look at the extent to which there is which happens once. It has to be part of the overall suYcient independence and impartiality to bring the culture of the organisation. One needs to look at the allegations properly to light in these cases. types of materials, the codes of conduct, that exist to see whether or not they comply with the relevant standards and whether or not they are suYciently up Q74 Chairman: Even after changes in the court to date to deal with current situations which may not martial system? have been conceived of when the manuals were Ms Ferstman: We do believe that further questions initially thought of. There is a range of training should be asked to ensure that suYcient needs and certainly it would be appropriate to have independence and impartiality should be there in external persons involved in those training processes respect of serious allegations. Some of the to ensure that those dealing with these matters have allegations, as youknow, are deaths in custody suYcient expertise which goes beyond the typical where there are serious allegations of torture. In remit of their superiors 3358395001 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 17
21 November 2005 Mr Ben Ward, Ms Carla Ferstman and Mr Livio Zilli
Lord Lester of Herne Hill: When I, in my glorious use and asked to look at the codes and other stuV military career as a second lieutenant Royal and been refused? Is this something that we ought to Artillery 1825. be asking questions about? Ms Ferstman: We have not been refused. In fact, our discussions on some issues with the military have been rather productive. Chairman: Was that when youwere in the army or was that your number? Q79 Lord Lester of Herne Hill: Looking at the actual material that oYcers and soldiers get in order to train them on humanitarian law, on human rights law and on practice, are there published materials Q78Lord Lester of Herne Hill: We had a manual of that youhave seen? military law and the section youare talking about Ms Ferstman: I do not have the detailed information was written by none other than Judge Hersch that you are seeking, unfortunately. Lauterpacht and Colonel Draper, and that manual was discontinued for reasons that had nothing to do Chairman: Thank youvery much.It has been a very with this. I have been trying to discover exactly what interesting and challenging session all round. I think training materials are now used and have so far it is a very good start to our inquiry which will failed. Have any of the three organisations ever continue over the next few weeks into the New Year. asked the Government what training materials they Thank youfor coming.
Supplementary submission from Human Rights Watch and the Redress Trust Human Rights Watch (HRW) and REDRESS would like to clarify their response to the Join Committee on Human Rights (JCHR) on 21 November 2005 to the hypothetical question posed about whether the police should investigate a tip about a bomb on the London Underground where that tip was known to have been obtained under torture in a third country. At the outset, our organisations wish to state that they consider the likelihood of such a situation to be extremely remote. It is highly unlikely that a third country would volunteer such information, since it would be an admission of a breach of its international obligations, and could trigger potential prosecution in other countries including in the UK under the Criminal Justice Act. Moreover, the head of MI5 gave evidence to the Judicial Committee of the House of Lords that where a foreign Government declines to provide the source of intelligence information, the UK will generally not ask further questions about it If such a tip were to come into the hands of the police, our organisations recognise that they would be under a duty to verify it, since to not do so would potentially risk the lives of passengers on the London Underground. But the answer cannot end there. Torture is illegal conduct of the most serious kind. The UK Government would also have a responsibility to make genuine inquiries with the State that provided the information about the circumstances in which it was obtained. Relevant questions include: how many people were tortured in order to obtain the information, what were their names, ages, and genders, were children or family members of suspects tortured, what methods of torture were used, for how long were the victims subject to torture, and what injuries did they suVer as a result. The UK should also examine whether the conduct amounts to a crime of torture subject to the jurisdiction of the international criminal court or universal jurisdiction under the torture convention. Similarly, the UK would be under an obligation to investigate how the information came into the hands of the UK police and/or other UK oYcials. The Arar Inquiry in Canada—established to investigate Canadian complicity in the rendition of a Canadian national to torture in Syria in 2002—has made clear that when torture is committed abroad it does not occur in a vacuum. Evidence before the Inquiry showed that the Canadian police shared intelligence with the Syrian Government knowing that there was a real risk that Maher Arar was being ill treated. If the British Government obtains information knowing it has been extracted by torture, it is bound under international law to conduct an independent investigation to establish whether UK agents were complicit, and to take appropriate measures to prevent similar acts in the future. If the UK Government were to accept the material without raising questions about the illegal conduct by the sending Government, investigating potential violations of international criminal law, and signaling its profound opposition to the use of torture under any circumstances, then it would be eVectively condoning the torture that took place, and arguably be encouraging further torture, in breach of its erga omnes obligations to prevent torture. 3358395002 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 18 Joint Committee on Human Rights: Evidence
If the UK government repeatedly fails to inquire about the circumstances in which intelligence is obtained—especially in countries where torture is widespread, and repeatedly fails to make clear that it is fundamentally opposed to the use of torture as a means of obtaining such information, then it is complicit in that torture, and in clear breach of its international obligations not to commit torture and to prevent it from occurring elsewhere. 30 November 2005 3358395003 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 19
Wednesday 7 December 2005
Members present:
Mr Andrew Dismore
Bowness, L Plant of Highfield, L Judd, L Mary Creagh Lester of Herne Hill, L Dan Norris
Witnesses: Ms Jane Winter, Director, British Irish Rights Watch, and Ms Aideen Gilmore, Research and Policy OYcer, Committee on the Administration of Justice, examined.
Q80 Chairman: Good afternoon, everyone. This is to be upheld, then there is a distancing from that rule an oral evidence session in our continuing inquiry on of law. The experience of Northern Ireland is well UK compliance with the UN Convention Against documented and it led to a lack of confidence in the Torture. We are joined for the evidence session this administration of justice over the period of the afternoon by Jane Winter, the Director of British conflict. Speaking particularly of the ill-treatment of Irish Rights Watch, and Aideen Gilmore, who is the detainees and torture provisions, Northern Ireland Research and Policy OYcer of the Committee on the did have documented ill-treatment and this was the Administration of Justice. Welcome to you both and subject of litigation domestically and in Europe. thanks for spending some time with us this Really, I think the experience shows that the afternoon. Perhaps I can start oV by asking Jane evidence that was generated from the use of ill- about the experience in Northern Ireland on issues treatment was consistently unreliable and there is a relating, in this context, to terrorism, including history of collapsed cases and miscarriages of freedom from torture. How do you think the justice, and it actually took international pressure experience of Northern Ireland should inform our from the European Court of Human Rights and the approach to counter-terrorism and policy more UN Committee Against Torture, for example, to generally? point out that the measures and practices being Ms Winter: Well, sorry to pass the buck, as it were, adopted actually violated human rights. The but Aideen and I had kind of carved up things immediate eVect when, for example, lawyers were between us and she is going to major on it. then allowed into interrogations or when audio Ms Gilmore: As I am sure members of the recordings were introduced was actually a dramatic Committee will be aware, Northern Ireland has had reduction in allegations of ill-treatment. We would emergency legislation of one form or another in argue that there is clear evidence, therefore, that the place for over 18 years now and our experience of it counter-terrorism legislation did not work in really has been that the human rights abuses which Northern Ireland and, despite this legislation being were generated have fed and fuelled the conflict in place, the conflict continued and terrorism rather than solved it. The powers that this kind of continued, so the two aims in introducing this kind legislation places in the hands of authorities place, of legislation of deterring would-be terrorists and of by their nature, a wide discretion. We all know that securing more reliable evidence were not met in that we expect quite high standards from those in whom the measures did not deter would-be terrorists and we entrust power and that discretion leads to scope the evidence which was gathered very often was for abuse and where the powers are abused, trust is unreliable and led to miscarriages of justice. In abused. The impact in Northern Ireland particularly Northern Ireland, what it actually took to resolve was, I think, the creation of suspect communities the situation was leadership and political and the eVect that this had on wider society was that negotiation and recognition, through the members of Northern Ireland society were made to Agreement, of the lack of confidence in the policing feel that these extreme measures were introduced to and the administration of justice and the need to protect them and target the others. This then leads mainstream human rights protections through the to a presumption or a perception of guilt from the Good Friday Agreement. Many of the outstanding communities that are targeted by the legislation that issues in Northern Ireland at the minute are in fact they are guilty of something and this can lead to related to issues around policing and justice, many further demonisation and alienation amongst of which are directly connected with the communities and, in some respects, justification in administration of the emergency legislation the minds of the public of inhuman treatment that throughout the period of the conflict. the legislation can generate. Really our experience is that the abuse of basic human rights led people to feel less, rather than more, secure, so, by introducing Q81 Chairman: What would you say to people who emergency legislation or counter-terrorism say that the new terrorist threat, the al-Qaeda-type legislation to increase security, the experience in terrorism is very diVerent from what you Northern Ireland would show that it actually lessens experienced in Northern Ireland, the nature of the that security. That is because it contributes to a target, the modus operandi, the fact that there is a greater sense of injustice and a sense of alienation possibility of a political settlement in Northern from the rule of law and if the rule of law is seen not Ireland, whereas there is not with al-Qaeda? 3358395003 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 20 Joint Committee on Human Rights: Evidence
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore
Ms Gilmore: I would argue that there are basic Samurai sword or something like that, and that human rights to be protected, no matter what the perhaps might be a more appropriate way to use threat of the terrorism, what the nature. I would them. There have been very serious injuries, but argue that our experience still shows that some kind fortunately nobody has died now for some years as of political engagement and political negotiation on a result of the use of these bullets, but there have the issues that are generating the disturbances and been very serious injuries. People have lost eyes, for the conflict is actually the first step that should be example, and suVered serious head injuries and engaged upon rather than introducing draconian compensation has been paid out in those cases. measures designed to increase security. As I have AEPs, if I can use the abbreviation, I am personally said, it has been shown that this abuse of human not convinced that they are any less dangerous than rights actually undermines security rather than their predecessor. The Patent Commission actually increases it, so it is not a quick-fix solution. recommended finding an alternative to the plastic bullet rather than a diVerent sort of plastic bullet and I think anybody who has seen one of these AEPs Q82 Chairman: The other thing I was going to ask V was about the ill-treatment of detainees by troops in would say that it is just a di erent type of generation Iraq. Do youthink there are lessons to be learned of bullet, as it were. It has a soft nose, it is not from Northern Ireland about how ill-treatment of supposed to cause such serious injuries and it is not detainees can be prevented eVectively? supposed to lodge in a wound if it does hit Ms Gilmore: Well, there are lessons from Northern somebody. A lot were fired this year, but we do not Ireland, for example, in the cases that were taken to yet know what the extent of the injuries was that they Europe were on the five techniques where the court caused. This is partly because people do not want to decided they were in violation of the European be charged with rioting, so they do not necessarily Convention on Human Rights and the Convention come forward, and partly because hospitals Against Torture. As I have already alluded to, when obviously protect the confidentiality of their patients UNCAT made its recommendations in the early and will not give us the information, so I think, as we 1990s around the ill-treatment of detainees in terms have found in the past, it will be a period of time of increased access by lawyers to interrogations and before people start going to solicitors seeking the introduction of audio sound-recordings, there compensation for injuries before we know what sort was a dramatic decrease in allegations of ill- of injuries these new AEPs do cause. One thing treatment, so I think those basic principles should which has been very problematic, as we have been apply wherever the interrogation is taking place. trying to monitor the use of AEPs after a period of almost two years when these bullets were not used at all in Northern Ireland, is getting accurate figures Q83 Lord Plant of Highfield: Could we move to which has been a complete nightmare. We still do plastic bullets, and I would like to ask you first of all not know, even though the last firing was in how youmake the humanrights case for the September, precisely how many bullets were fired by withdrawal of plastic bullets, including the current the Army or the police and we are still waiting for form of plastic bullets, the attenuating energy answers to requests under the Freedom of projectiles. Can it be established that the potential Information Act for accurate figures. We have seen injuries they cause are likely to breach the very disparate figures all apparently coming from Convention Against Torture? The Police oYcial sources, including the Chief Constable of the Ombudsman has endorsed these AEPs as being Police Service for Northern Ireland, none of which more accurate and less lethal than alternative plastic add up, but they certainly fired at least 400 this year bullets, so is there a case to be made, and I am sure and, as I say, we do not know what extent of injuries there is, that they are safer than was previously the was caused by them. Also, the research that has been case with plastic bullets and how do you make a case, done on the AEP obviously could not be carried out as I think youhave done, that they are incompatible on human beings, so they could only try to replicate with human rights conventions? the eVect of these bullets on a real person. By and Ms Winter: Well, I think that there are a number of large, with the exception of the tendency not to lodge answers to that. Firstly, of course the Committee in the wound, the new bullet compared pretty Against Torture itself has recommended that they equally to the old bullet in terms of the amount of not be used, so has the Committee on the Rights of damage that it could do, so we are not convinced the Child because, of those who have died from that it is a safer bullet and better minds than ours in being hit by earlier versions of the plastic bullet, a the shape of the Committee Against Torture have large proportion of them were 18 or under and we concluded that it is not a suitable weapon to use for know unfortunately that children are often caught riot control and that is good enough for us. up in rioting in Northern Ireland and are likely to suVer more seriously from being struck by one of these bullets than an adult would be which is the Q84 Lord Plant of Highfield: But, given that, given reason why the Committee on the Rights of the what youhave said aboutACPO and what youhave Child has been concerned. ACPO does not said about the Patten proposals, if one is going to recommend the use of plastic bullets for riot control criticise the use of baton rounds, plastic bullets, and in this country, in England, they have always AEPs, whatever they might be, one has to come up been used in one-on-one situations as an alternative with an alternative, so what are the alternatives to to using live bullets in order to disarm somebody the use of these baton rounds, given also that there who perhaps was holding a hostage or wielding a has been quite serious rioting this summer? 3358395003 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 21
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore
Ms Winter: Obviously I am not an expert in crowd Ms Winter: I have had formal discussions with the control and cannot pretend to be, but I do know that Chief Constable and we have had to agree to diVer. the Police Commander for the City of Derry has not He feels that he needs plastic bullets and, as far as he used plastic bullets for seven and a half years in is concerned, they are an alternative to live Northern Ireland, including this year when there has ammunition and that has to be a good thing. I think been serious rioting going on, so he must have some CAJ have had more contact with them than I have. ideas on how to control serious public disorder Ms Gilmore: Yes, we have spoken directly with the without using the bullets. Also, they are not being Chief Constable and he said the same to us basically used by police forces in England and Wales or in as he has said to Jane on the issue. Scotland for that purpose, so they must also have strategies. I do appreciate that there is a diVerence in Q88 Chairman: Could I just ask about this point Northern Ireland in that not only are the police about the extent of the injuries. I understand why armed, but also sometimes demonstrators are armed people do not want to come forward as individuals as well, as we saw in September, and that clearly and that the hospitals want to protect patient raises the ante in terms of self-protection for the confidentiality, but presumably there must be some police. I understand that the human rights advisers epidemiological evidence which does identify people to the Policing Board are about to produce next who have been hit by plastic bullets and what the week their report on their monitoring of the police’s eVects are. handling of those situations and I think it would be Ms Winter: Yes, certainly some time ago a group of interesting to see whether they have any doctors from six hospitals in Belfast, who were recommendations. Certainly informally one of them concerned by the extent of the injuries they had seen, has said to me that he felt that the police allowed and this is on one of the older versions of the plastic themselves to get into a corner where they put bullet, did publish a report which had some quite themselves at more risk than they need have done, so alarming findings. They found that, I think it was, 18 I am sure there are lessons to be learned, but, as I say, or 19 per cent of people had been hit in the head or I am not an expert. the upper part of the body and quite a large percentage had also been hit in the abdomen which Q85 Lord Lester of Herne Hill: Does either of your obviously could potentially cause serious injury, and admirable organisations know of examples of good in fact did, according to their report. They really did V practice in this area of alternative means of serious that o their own bat, nobody asked them to do it. riot control, whether in this country or in other I know that the Police Ombudsman has tried herself countries that face similar problems? Is there to get information about injuries because she Y anything we should know about that happen monitors every plastic bullet fired by a police o cer. elsewhere? She has no control over the Army, but she can look Ms Winter: I am afraid that, because it is not really at the police. She told me that the hospitals had my area of expertise, I do not, other than to say that refused to co-operate with her which is not helpful I know that the Police Commander in Derry has from her point of view. somehow managed to control really quite diYcult situations without using bullets. My understanding Q89 Chairman: There were something of the order of of his success has been that he has worked very hard 500 fired over the summer between the Army and the on building relationships with the community that police together. he polices and talking to both sides of the argument Ms Winter: Yes. when it comes to parades particularly, which is where riots often centre in Derry. Q90 Chairman: I am surprised, in those circumstances, if there have been a lot of serious Q86 Chairman: But that is a slightly diVerent injuries, that the hospitals have not been jumping up question. Avoiding riots in the first place is and down, saying that those injuries have increased obviously the best of all possible outcomes, but I their workload, never mind the impact on the people think Lord Lester’s question is that if there is a riot, receiving those plastic bullets. how can Derry do it without plastic bullets and Ms Winter: I do not know whether they have been Belfast uses them? doing that internally, asking for more resources, but Ms Winter: Yes, but, as I say, I honestly do not know they certainly have not said anything publicly. In our the answer to that question. You might want to ask experience of monitoring the use of these bullets now the Police Commander from Derry. for 15 years, information tends to percolate out Chairman: We might well do that. rather slowly and we are perhaps a little too close to the firings which happened this year to have a complete picture as yet. Q87 Lord Judd: Youhave referred to informal Ms Gilmore: What we did have in the immediate meetings and impressions, but I would like to know aftermath was obviously individuals coming whether youhave ever sought,and managed to forward to the media themselves. There was a case achieve, discussions formally with the police about of a young person of 11 or 12 years of age who had their policing methods and how far plastic bullets received a bad head injury and so you do get some are necessary and what the diVerences are between picture of it from the media coverage, but not so Derry and Belfast. much from medical sources. 3358395003 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 22 Joint Committee on Human Rights: Evidence
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore
Q91 Lord Lester of Herne Hill: Has the Police Ms Winter: Yes, and in both cases there is still a risk Ombudsman complained in public about the lack of of abdominal or genital injury because these things information about the use of these bullets? pack quite a punch. They are meant to knock you Ms Winter: Not to my knowledge, no. over and they do. Father Aidan Troy, who has been used as a negotiator in riot situations, was Q92 Lord Lester of Herne Hill: Why not? Is that accidentally hit by a bullet and it knocked him oV his something which the Ombudsman can do? She is the feet and he is not a small person. Also, another public watchdog. problem with both sets of guidelines in fact is the Ms Winter: She does produce public reports which firing distance. With the previous bullet, the are on her website of each and every firing by a police minimum distance was 20 metres, which is really oYcer that she has monitored and she has made quite a considerable distance. It is now only one recommendations for how the police should perhaps metre, which is very close range to fire something amend their practices. She has complained on that is intended to knock somebody down and we occasion that the police have not followed those think that is too close. Obviously we would prefer recommendations, but she has found that every that they are not used at all, but we would certainly single firing was within the guidelines and she has like to see them used from a far greater distance if not strayed outside her remit to criticise anybody they are going to be used, especially again where else. children are concerned because firing at a child from that close range could have much more serious Q93 Chairman: Presumably if they are firing within consequences than for an adult. the guidelines, then that is it from her point of view because there is no breach of any procedures. Q97 Chairman: Is there a maximum range at which Ms Winter: Yes, even though she has acknowledged youfire them? in her reports that injuries have resulted from the Ms Winter: No. firings. The real diYculty, I think, is that she cannot look at the Army firings. Q98Lord Lester of Herne Hill: Can we have copies of the guidelines for the police and the armed forces? Q94 Chairman: That is what we want to go on to ask Ms Winter: Certainly, yes. you about. In particular, you have raised the question of diVerent guidelines for the Army as V Q99 Lord Lester of Herne Hill: I am amazed to hear opposed to the PSNI. What are those di erences in that the armed forces ones are available because I detail? What elements of that do youthink are Y have tried to get the terms of engagement for the su cient to protect human rights, putting aside the armed forces in Iraq and they are very confidential, issue of plastic bullets in general anyway? but you say that they are published only on the use Ms Winter: It is rather sad really because originally of these weapons? the police and the Army had separate guidelines and Ms Winter: I have not looked for the Iraq ones. they would not publish them. CAJ in particular did a lot of work to get them to publish them and then it became obvious that they were at odds with one Q100 Lord Lester of Herne Hill: It would be very another and they were brought quite closely into helpful to have them as a matter of record. line, but since the AEPs came in, they have begun to Ms Winter: I have a copy with me that I can leave diverge again. The PSNI is using the ACPO with you. guidelines, even though the ACPO guidelines say that this is not an ideal weapon for crowd control, Q101 Chairman: I would like to see the AEPs to see but nonetheless they do follow them. The Army has what we are talking about. Otherwise, we will ask the its own guidelines which are much shorter, much less MoD to supply one. detailed and diVer in a couple of respects which we Ms Winter: When we asked for the PSNI guidelines, think are significant. The ACPO guidelines say that they refused and the reasons they gave were that AEPs should be fired below the belt buckle area, giving us these guidelines might put individual whereas the Army guidelines say below the ribcage, oYcers at risk, which we felt was a little insulting to and obviously when you are a soldier in the heat of our organisation which would never dream of doing a riot, making that fine distinction is not a very easy anything that would put an individual police one to make and there is a danger. oYcer’s life at risk. They did tell us that ACPO were going to put their guidelines on the website and they Q95 Chairman: So basically the police can hit in the finally conceded that they were using the ACPO chest area? guidelines. The MoD had had its guidelines up on its Ms Winter: No, it is the legs. They are meant to be website for several months as a matter of course. It firing no higher than. Sorry, I should have made that was just that I could not find them. clearer. Basically below the ribcage could be seen by a soldier as being higher up the body than the belt Q102 Chairman: I have one last question on AEPs. buckle area which is the police guideline. One issue raised is the lack of accountability with particular reference to the Army. You say that in Q96 Chairman: So, just to get this completely clear, practice there have not been any complaints against the police say that you fire below the belt buckle and the Army through their internal procedures. Is that the Army say below the ribcage? correct? 3358395003 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 23
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore
Ms Winter: I do not know because they do not criticised. In terms of the independence and publish statistics about their internal complaints eVectiveness of investigations, I would like to ask procedure. There is somebody called the whether you are aware of any progress that there has Independent Assessor of Military Complaints been recently or likely progress fully to implement Mechanisms whose job is to assess that the the Strasbourg court’s decisions in those cases, mechanism is working, but he cannot receive or particularly Jordan and McKerr? investigate complaints himself. I understand that he, Ms Winter: The truth is that the government has not for the second time, has been allowed by the General implemented the Strasbourg rulings that there OYcer Commanding to have a look at the firing of should be an eVective investigation in Jordan, AEPs this year by the Army and that a report is due McKerr and the other cases that were heard at the out next year by him. His oYce explained to me that same time, but they have set up a Historic Inquiry it is very diYcult to get the information because Team within the Police Service of Northern Ireland battalions come and go in Northern Ireland. Unlike to look at pre-1998—in other words, pre-Good the police who have to record every firing and submit Friday agreement—cases which remain unresolved. a report to the Police Ombudsman, they do not have There may be some form of eVective investigation to make a record. Usually the oYcer commanding via that route. In terms of litigation, I am sure that will keep a record that a round has been fired but Lord Lester in particular will be aware of the Hurst getting detailed information is very diYcult for the case in the Court of Appeal here in England which Assessor. He does not have the resources. He has suggested that section three of the Human Rights half a civil servant working for him as opposed to the Act 1998, which says that all legislation that is Police Ombudsman who has a very large oYce with already on the statute books should as far as possible 60 investigators. He can only investigate firings by be construed in the light of the European the Army with the permission and cooperation of Convention on Human Rights, does imply a right to the Army. He does not have any statutory power to an eVective investigation even in pre-2000 deaths do so. when the Human Rights Act came into force. That is on its way to the House of Lords, as I understand Q103 Chairman: Youhave probably answered the it. There are two conflicting cases from the Court of question I was going to ask about accountability in Appeal in Northern Ireland, Jordan and McCaughey the Army. Are there any other points youwouldlike & Grew, both of which were looking at the issue of retrospectivity of the Human Rights Act and the to add? V Ms Winter: Yes. The Police Ombudsman does not right to e ective investigation and both of which have jurisdiction over a firing by the Army. The contradicted each other. One court said in the Chief Constable has said recently in a letter to CAJ Jordan case said that it did apply retrospectively and that he has no control over the firing of either live or in McCaughey & Grew they said it did not. Those are AEP rounds by the Army and therefore can take no also on the way to the House of Lords and hopefully responsibility for it. They are responsible for 25 per that will resolve this in a satisfactory manner. cent of all firing pretty consistently over the years, although this year, as far as we can tell because we Q105 Lord Lester of Herne Hill: Leaving aside the do not have the final figures, they seem to be very narrow and inconsistent approach adopted by responsible for 32% of all AEPs fired. That is quite the courts, how do you respond to the government’s a large amount of firing that is not subject to any argument that after a very great lapse of time it is proper scrutiny. It is a matter of real concern. We say impossible to conduct a proper, independent and that since the police have primacy in Northern eVective inquiry in terms of its overall fairness? Ireland it should be possible for the Ombudsman to Ms Winter: Inevitably the older a case is the harder look at all the firings of AEPs rather than just firings it is. Evidence disappears, people die and so on, but Y by police o cers because, on most occasions, the the government has just allocated £32 million over Army are not there on their own; they are there in six years to the Historic Inquiry Team precisely to support of the police. It is the police who are making look at very old cases. There is some inconsistency in the operational decisions about whether to open fire throwing that much money at a problem if it cannot at all and so on. We think she has the mechanisms be solved. Although they have not yet become and resources to do the job properly whereas the operational, in preliminary discussions with the Y Military Assessor of Complaints Mechanism’s o ce Historic Inquiry Team, they do seem to already be does not. coming up with new information. They are able to Lord Lester of Herne Hill: I should declare an use some new techniques which were not available at interest because I once represented the UK against the time of the deaths such as DNA techniques to get Ireland in a Northern Ireland torture case many new evidence. We do not accept that it is ever too late years ago. to put right something that was done wrong in the Chairman: Did youwin or lose? first place. At least the attempt should be made. The European Court of Human Rights in their rulings in Q104 Lord Lester of Herne Hill: We won and we lost. Jordan, McKerr and so on quite clearly ruled that CAJ has been involved in a whole series of those families were entitled to an eVective Strasbourg cases with names like Jordan and investigation regardless of how long ago the deaths McKerr. In McKerr, the Law Lords decided very were and indeed awarded compensation which is narrowly that the judgment of Strasbourg would quite unusual. They were trying to send a message to have no retrospective eVect. That has been widely the UK government that they had really slipped up 3358395003 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 24 Joint Committee on Human Rights: Evidence
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore here. We simply do not accept that just because that will hopefully clarify the legal situation. Until something happened a long time ago youcannot do that happens, we are not sure what will happen but anything about it. if the position in the McKerr case is maintained what will develop is a two tier system for inquests, for Q106 Lord Lester of Herne Hill: Are youaware of events pre-the Human Rights Act and post-the other similar cases involving deaths or ill treatment Human Rights Act. That is quite an unacceptable where, in your view, there have not been adequate situation. You either have a right to an eVective independent investigations? investigation or youdo not and it is a rather Ms Winter: No. Interestingly, I have been aware of arbitrary cut oV point in terms of the protection of serious allegations of ill treatment in Northern fundamental human rights. Case law in Northern Ireland but they have gone through the civil courts Ireland and Britain has been inconsistent on this where, as youknow, the standard of proof is balance point as well. The challenge is whether agencies of of probabilities rather than beyond reasonable the state will take advantage of this potential escape doubt. Where there has been evidence that there was route or show some leadership or be asked to agree ill treatment, reasonable sums of compensation have to run the remaining cases on outstanding inquests. been paid and very often the police have settled We have seen real resistance. The other option is to without going to court because they have admitted pass a piece of legislation which would require all that they did ill treat the person. There seems to be pre-1998 inquests to proceed in compliance with something diVerent about eVective investigations Article 2. If the position on McKerr is upheld and the into deaths and I think the thing that is diVerent is two tier system develops, those families will have to that the allegation of collusion is very often made go to Europe again which is another lengthy and that a police oYcer, a soldier or sometimes even a costly process which will delay justice even further. civil servant may have colluded with paramilitaries, either in helping or facilitating the murder or in Q109 Lord Lester of Herne Hill: Is this an example covering up afterwards. That is the thing that makes where the Human Rights Act is not a helpful eVective investigations into old cases in Northern instrument since if we did not have it at all they could Ireland so particularly diYcult and why the not draw this distinction between the old and the government is so resistant to them because they do new, since the Strasbourg court would require not want the extent of collusion to come out into eVective investigations regardless of whether they the open. were before or after the Human Rights Act; whereas with the Human Rights Act you get technical? Q107 Lord Lester of Herne Hill: What youare Ms Gilmore: That is right. It is a technicality that is saying is that the need for the supra-national quite unwelcome, although I am certainly not Strasbourg remedy is less when there are eVective arguing that we should not have implemented the investigations or civil proceedings and there are now Human Rights Act—far from it. more eVective civil proceedings. Therefore, these old cases are serious, historic ones? Q110 Lord Judd: In answer to Lord Lester, you Ms Winter: I wish I could say that. referred to “very many instances”. I do not want to be pernickety but “very many” could be quite an Q108Lord Lester of Herne Hill: I am not trying to alarming number. Would you like to quantify your put words in your mouth. “very many”? Ms Winter: I certainly agree that where there are Ms Winter: In relation to collusion? better and eVective mechanisms there is far less need ever to go to Europe or sometimes to have recourse Q111 Lord Judd: Yes, approximately. to the Human Rights Act. In relation to eVective Ms Winter: When I first started work on human investigations into deaths, it is not just an historic rights in Northern Ireland 15 years ago, the UK problem. There have been five murders over the government told the House of Commons and the summer in Northern Ireland. Not one of them has UN that there was no such thing as collusion in been solved and there are a number of cases that we Northern Ireland. Since then, we have had the are working on where essentially serial murderers Stevens Inquiries and John Stevens has said that who have been paramilitary members have got away there was collusion. He originally said that he did with murder literally for years, who have also been not believe that it was widespread or endemic but he government agents and have been protected by the has now changed his mind about that. We have also powers that be. We fear that there is still an element had the investigations by Judge Peter Corry, a of that going on. It has not resolved itself completely former judge of the Canadian Supreme Court, who even though I believe the police are making attempts looked at the invitation of the British and Irish to resolve it. governments at six landmark cases where collusion Ms Gilmore: In relation to requiring access to had been alleged and found a prima facie case in five Strasbourg, where we have seen the greatest impact out of the six cases. Obviously that does not sound on the lack of implementation of the European like very many but in my day to day work I have judgments is around inquests. At a best guess, found over the 15 years that the extent of collusion around 40 are outstanding and some go back as far has been very great. It has been about putting the as the early 1990s. Inquests came in for direct need for intelligence above the right to life and the criticism in those cases in Europe. There are a need to protect the right to life. Once an agent has number of cases outstanding in the House of Lords been put in place, in order not to blow their cover, as 3358395003 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 25
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore it were, they have been allowed to participate in the Scottish former judge who is chairing that illegal acts, including murder so that it would not inquiry, has successfully petitioned the Secretary of become apparent to the people they had infiltrated State for Northern Ireland to take over that they were agents. This was a policy which was responsibility for that inquiry and to make it an practised for years. We do not know the full extent Inquiries Act inquiry rather than a Prison Act of collusion but I believe it has been widespread. We inquiry. Billy Wright’s family feels that, because the really need to find out what the extent of it was and Northern Ireland OYce were in some ways involved put in place practices which make it very diYcult in the situation which led up to Billy Wright’s death, ever to replicate that again because it has done this is not going to be a fair, transparent or untold damage to people’s faith in the criminal independent inquiry. That has much wider justice system, in the police, in the Army and the implications within their community because they courts in Northern Ireland. It is going to take years are not the only people who will be asking those and years to repair. questions.
Q112 Mary Creagh: Both organisations have been Q114 Lord Lester of Herne Hill: I had a very full part critical about the independence of inquiries under in the debate on the Inquiries Bill. I supported the the Inquiries Act 2005. Can you tell the Committee Inquiries Bill strongly because it seemed to me a what yousee the problems of incompatibility being? much better framework generally than the old Ms Winter: The major problem, particularly when it Tribunals and Inquiries Act in the 1920s which was comes to torture which is your focus today, is that not a proper framework at all. I read all the very the Inquiries Act will not be able to provide an strong criticisms of the kind youare now making eVective investigation into allegations if the from the New York Bar Association as well as government department responsible for the inquiry NGOs in Northern Ireland and elsewhere. I had any form of responsibility for the alleged understand the criticisms but I wonder whether you violation. That responsibility could be by way of would agree with me, first of all, leaving aside the supervision, regulation or inspection—it does not particular concerns of today, that it would be better have to be direct responsibility. But under the Act to have a proper statutory framework for inquiries what has happened is that the control of inquiries rather than the 1921 Act which is clearly antiquated held under the Inquiries Act has moved from an and totally rudimentary? There ought to be a proper independent, judicial figure in most cases to the statutory framework for inquiries. Secretary of State for the department which has the Ms Winter: I would agree. We said that in our greatest interest in the issue. That Secretary of State submission to the government’s consultation on will have very wide powers, particularly the power to inquiries. issue restriction notices, which will prevent the public from being present, could prevent evidence Q115 Lord Lester of Herne Hill: Would you also that is put before the inquiry from being made public agree that almost everything depends upon the and could prevent the publication of the report. The independence and robustness of the judge or other independent nature of the inquiry has vanished at person who is chairing the inquiry, whose job it is to that point. It was suggested during the debate on the stand up to any improper interference from the state Bill that another Secretary of State could perhaps in running the inquiry? That matters at least as much take responsibility in that sort of situation but we are as the mechanics of the statute. talking about people who are Cabinet colleagues, Ms Winter: I certainly think that is true. Whereas who have an identity of interest. It is an unfortunate under the 1921 Act, although not many inquiries fact of life that when government departments have were held under the 1921 Act but public inquiries made mistakes their natural tendency is to cover generally, a judge could stand up to any attempt at them up rather than to admit them. It is not a political interference in the running of the inquiry, satisfactory way of dealing with it. Although it is not the powers to be given to the Secretary of State are my field, I think if we are thinking about issues such not negotiable. There is nothing a judge can do. I am as ill treatment of elderly people in homes, for not a lawyer so I may be wrong about this but it example, or the abuse of children in homes which seems to me an awful spectre that a judge would try would certainly come under the remit of the to judicially review the Secretary of State for issuing Committee Against Torture, it could be very diYcult a restriction notice, for example. Otherwise, I cannot for a family to get straight answers in the way that see what a judge can do. They can say no until they they could whilst we still had public inquiries. are blue in the face but if the Secretary of State has made up his or her mind to issue a notice I do not see Q113 Mary Creagh: Are yousaying that Cabinet’s that anything on the face of the Act would prevent it. political loyalty to each other would override their duty to protect the interests of people in Northern Q116 Lord Lester of Herne Hill: I understand the Ireland? attack youmade on the Bill when it was going Ms Winter: I am saying it could. I may sound naı¨ve through and so on. Now that we have it, should we but I genuinely believe that justice has to be not only not suck it and see? In other words, would it not be done but seen to be done. We have an example in sensible to see whether in practice the way a judge Northern Ireland of the inquiry into the death of operates an inquiry enables it to be independent in Billy Wright who was a Loyalist leader who was fact and whether ministers aresuYciently sensible murdered inside the Maze Prison. Lord MacLean, not to use those restrictive powers in order to 3358395003 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 26 Joint Committee on Human Rights: Evidence
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore damage public confidence, rather than simply It is simply a finding in terms of who the deceased boycotting the system which is the other way of was and how, when and where they met their death. doing it? That is what I am concerned about. The European cases criticised this as not being Ms Winter: In the majority of cases, there is no Article 2 compliant and recommended that it be reason why the Inquiries Act should not work changed. In the case law that has developed around perfectly well. The diYculty is where there is a this courts have consistently found that a verdict is serious allegation of collusion, for example. A very still not required to be Article 2 compliant. There good example of that is the case of Patrick Finucane was a case called Middleton, where they said they which was one of the motivations for changing the would broaden it to by what means x in what law. An inquiry under the 1921 Act was not felt by circumstances so that it would not be a verdict but it the government to be an acceptable way of dealing was broadening the findings, if youlike. with the case of Patrick Finucane. This is one of the Unfortunately, in a number of inquests from pre- cases where John Stevens said there was collusion by 1998 cases which are current, Crown counsel has both the Army and the police in his murder. In those been arguing that because the death occurred before sorts of cases, we have been told that civil servants 1998 they are still not required to adapt that broader are already drawing up restriction notices for a definition of how. There are some very serious Patrick Finucane Inquiry under the Inquiries Act. problems in terms of the scope of inquiries at That does not give us confidence that in that sort of present. Some of this may be resolved by the House case the Inquiries Act is going to work. In a way, I of Lords judgment but arguably legislation is would rather suck it and see on an ordinary case than required to bring the inquest system in Northern on a case like that. Ireland in line with the inquest system in Scotland, England and Wales. Q117 Mary Creagh: Has the Finucane case already started? Q121 Chairman: I would like to ask about the Ms Winter: No. No inquiry has been announced but Northern Ireland (OVences) Bill. We will be doing a civil servants and the police are preparing for it. detailed scrutiny job on this hopefully in the not too distant future. Where do you think the proceedings Q118Mary Creagh: Will it be one of the first? under the Bill would be likely to breach obligations Ms Gilmore: The Billy Wright inquiry will be the under Article 2 with regard to deaths involving the first. security forces and deaths caused by people on the Mary Creagh: How is the priority decided? run? Ms Winter: I do not think the Bill impinges on the Q119 Lord Lester of Herne Hill: Before we get to duty to investigate crime up to the point where that, are yousaying that there are no circumstances somebody is charged but after that it abnegates the in which a minister should be allowed to make a ability of the courts to investigate. Very often it is restriction notice in such an inquiry? during the trial that the true picture comes to light. Ms Winter: No. I recognise that there are issues of Because people who can benefit from certificates national security in Finucane and other cases. It was under the Bill will not have to appear in court at all ever thus and that has not changed. I was at a and it is not clear to us whether the hearings will have meeting in relation to the Billy Wright inquiry with to be in public or not, the chance of finding out what the Secretary of State for Northern Ireland and he really happened, particularly for the family who do gave Mr Wright, the father, an undertaking that he have rights to know the truth about what happened would not make any restriction orders. His civil to their loved one, is going to be lost. It is for that servants quite rightly immediately leapt down his reason that we are opposed to the Bill. In relation to throat and said, “No, minister, youcannot make the on the run prisoners—I gather they are only a that promise”, the reason being that he would be small group of people—it seems to us that that was fettering his discretion. If any party to the inquiry part of the political settlement that was made in asks for a notice, the Secretary of State must relation to Northern Ireland and therefore, because consider that and must take all the circumstances we take no position on the political outcome of the into account. If I had to rely on an issue that touched peace process, it is diYcult for us to comment on it me personally on the independence of a judge or the specifically. The Bill is going to apply to a much self-restraint of a Secretary of State whose own wider group of people and I think it will sweep an department is under criticism, I would rather have awful lot of things under the carpet. Whether they the judge. will stay under the carpet is another matter because people have developed, particularly since the 1994 Q120 Mary Creagh: Yourecommend that new ceasefires and the 1998 peace agreement, a real longing to understand what has been going on for legislation be introduced to implement the Y recommendations of the Luce Review into inquests. the last 30 years and are finding it di cult to put Do youthink that the main problem now with what has gone on behind them because they do not inquests which occurred before 1998 is that their yet know the truth about what happened. scope is too narrow? Ms Gilmore: The key issue is in relation to the Q122 Chairman: If the hearings are conducted in problems identified earlier in terms of pre and post public and the accused, if that is the correct Human Rights Act. The Northern Ireland system of terminology, is required to be there, would that inquests does not allow an inquest to reach a verdict. satisfy you? 3358395003 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 27
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore
Ms Winter: If they can be charged and tried, for the Ms Winter: Ideally, I would prefer a situation where majority of cases it would satisfy me but where there everybody is equal before the law and is treated in has been collusion, where somebody has been given the same way. Unfortunately, when political deals extraordinary powers, for example, to arrest people, are made, people often step outside the human rights to lock them up, to carry and use weapons and so on, nexus. In a way, a compromise was already made in these people are public servants in whom we have letting people who have been convicted and are in placed our trust and we have allowed them to do prison be released early from jail. In political terms, things which ordinary citizens are not allowed to do. it seems a bit of a nonsense to pursue a small group For them to escape any censure or punishment for of people who will only serve a token amount of time that does concern me very greatly because we expect in jail anyway if by not doing so youcan persuade higher standards from them than we could possibly the IRA to decommission. That is how it strikes me hope to get from terrorists. personally as a matter of common sense. I would still say that I would prefer to see ordinary trials for everybody but I would particularly prefer to see that Q123 Chairman: Youare saying that the same we do not abandon any pretence of justice where principles would apply to the obligation to collusion can be proved, because I think it is such an investigate and prosecute acts of torture or inhuman abuse of our trust and it kind of sends a message that treatment? that sort of behaviour is all right, which would not Ms Winter: Yes. be learning the lessons of Northern Ireland where it clearly was not all right and where it has done Q124 Lord Bowness: Yousaid youthoughtthere was enormous damage. no infringement of any of the Articles under the Act up to the point of charge but you were concerned Q126 Mary Creagh: If the security services were that the court had no discretion or involvement after exempted from this law, there could be an that point. Can youelaborate? international human rights case which said there are Ms Winter: As I understand the Bill, once a person two crimes equal in severity. A was convicted but let has applied for a certificate, instead of appearing out instantly; B got 20 years in jail. You can imagine before a judge and—as it ought to be—a jury, they a situation in a human rights case, going to will only appear before a single judge. They do not Strasbourg, where you could show that there had have to attend the hearing. There is no obligation on been inequal treatment between these two them to defend themselves and I presume, although categories. That is the diYculty, surely? the Act is not clear on this point, that it will not be Ms Winter: This Bill creates enormous diYculties. I possible for the court to draw adverse inferences imagine, if we were talking about serious matters from the person’s failure to appear. All that will such as torture and the right to life, the Strasbourg happen is that the prosecution will outline its case. court would have something to say about a law Normally when a defendant at the moment chooses which allowed people impunity in that way. not to testify in their own defence, it means that the Anybody who took such a challenge might well live case becomes very short. The prosecution outlines to regret it in that they might not like the result but their evidence and the judge and/or jury make a I have not had a chance to think that far ahead. I am decision. It is all over very quickly and very little hoping that this Bill will not go through in the shape comes to light. That is what worries me about this it is. We will have to see. proposed system: that there will be many, many cases where people will not know the truth about Q127 Mary Creagh: Youhighlighted prison what happened, will not be satisfied and will not feel conditions for women in Northern Ireland at that they have had justice. All the attempts to rebuild Hydebank Wood. Are youaware of any significant people’s trust in the administration of justice in improvement in conditions for women prisoners Northern Ireland and all the reforms in policing and since that time? the criminal justice system will come to nought if Ms Gilmore: There have been a number of people cannot get justice in the courts. improvements. The initial report that identified the problems was called The Hurt Inside. It was produced by the Northern Ireland Human Rights Q125 Mary Creagh: Could the law be applied Commission. Subsequent to that, the chief inspector diVerentially? If the government as part of the of prisons and the Criminal Justice Inspectorate political settlement is going to make a change for the carried out investigations and found similar “on the runs”, how could there be equity under the problems. The Northern Ireland Prison Service has law for everybody? Could you see a system which responded to the latter report. The Criminal Justice could be made to work where there is diVerent Inspectorate say that the Prison Service has adopted treatment for people who have committed murder or all their recommendations but the Prison Service atrocities through varying routes? Could you see a says it has adopted most of their recommendations. way in which the law could be made equal for those? I am not clear which is the case. There have been a The outcome is that we are trying to make the law number of changes. There have been improvements, equal but could you see a way of reverse engineering for example, in the number of women prison oYcers it so that, if there is evidence of the security forces and there seems to be greater training on how to deal having collaborated, there would be some sort of with gender specific issues and how the Prison justice? Service can improve its performance in that regard. 3358395003 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 28 Joint Committee on Human Rights: Evidence
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore
In-cell sanitation was also an issue and I understand Rights Commission would have to agree with the that has been addressed although ironically it has manager of the centre to be investigated. The terms made the cells even smaller than they already were. of reference for a visit and perhaps the Commission There are a number of other outstanding issues. The would have to give a certain period of notice to the big one is the provision of totally diVerent, discrete place it wished to visit and it would be open to the facilities for women prisoners, which is what both place it was wishing to visit to challenge the the Human Rights Commission and the Criminal investigation as unreasonable or unnecessary. It Justice Inspectorate recommended. The Prison seems to us that that could render the power Service’s response has been to accept that in eVectively meaningless. When one reads the work principle but to say, “Is that how the public want to that groups like the Association for the Prevention spend their money?” which does not exactly show of Torture have produced on access to places of real commitment to the issue. detention, it is clear what they envisaged were essentially unannounced visits. If you take the Q128Mary Creagh: What about delivering health requirement to agree terms of reference for a visit, services in prison? Obviously, there are primary one can envisage the situation where the health care and mental health issues, drugs Commission and the place to be visited get into an rehabilitation and so on. Can I ask about the extended wrangle over what the terms of reference provisions made, if there are any, for children? for that visit would be. At best that could lead to Ms Gilmore: My understanding is that is where there legal proceedings. At worst it could lead to the visit has been the least progress. There is still no not taking place at all. Likewise requiring notice dedicated health care centre for women. One of the could mean that the place to be visited could make big issues identified by the investigation was the issue sure things are in order for the visit. The tenor of that of mental health and imprisonment of women with power is its ability to be surprising and mental health problems when they should not be in unannounced. prison in the first place and the system’s inability to deal with them once they were there. In terms of Q133 Chairman: How many women are in prison in child care, they have combined two cells into one to Northern Ireland? give a bit more space for another baby. Ms Gilmore: 20 or 30. It is a relatively small number.
Q129 Mary Creagh: There is no special mother and Q134 Lord Plant of Highfield: I would like your view baby unit? about the renewal of the Part 7 arrangements under Ms Gilmore: No. the Terrorism (Northern Ireland) Bill going through Parliament at the moment. Youdo not see the Q130 Mary Creagh: Children are in cells with other review of these provisions as being necessary. The prisoners alongside? Secretary of State has committed the government to Ms Gilmore: Yes. reviewing them at some point. Nevertheless, the Bill as it is before Parliament at the moment does review Q131 Mary Creagh: Do youknow what age the them, so is there a case that youcan see for the babies are? renewal of Part 7 in current circumstances? What do Ms Gilmore: I do not know. The Northern Ireland youthink might happen as a resultof the application Human Rights Commission, I understand, is due to of the provisions of Part 7? conduct some follow-up research on this in the Ms Gilmore: Our position has always been that we coming months so they will be able to generate better do not believe this legislation was necessary in the information. first place. Therefore, we would see continued renewals as equally unjustified. This was one of the Q132 Mary Creagh: The Committee Against areas of focus for the Committee Against Torture Torture recommended that the Northern Ireland last year. Given that there was a state of peace Human Rights Commission be designated as a essentially in Northern Ireland, they asked the monitoring body to have power to go into places of government how the extension of emergency detention. That has now been agreed. Do youthink legislation could be justified. They commented in that adequately addresses the recommendation? their recommendations on the lack of response they Ms Gilmore: I do not, for a number of reasons. received from the government on that issue. As you Firstly, although the government announced it have noted, there has been an announcement that it would give the Commission this power, it is only in will be repealed within two years as part of the recent weeks that they announced a consultation or normalisation process. Our fear is that in repealing review of a whole range of Commission powers, of Northern Ireland specific legislation, we will be which this was one. In that consultation document, subjected to UK-wide counter terrorism measures so they agreed in principle to designate the Human essentially we would be getting the emergency Rights Commission and give it power to access legislation in Northern Ireland in yet another form. places of detention. However, they expressed That would be an extremely retrograde step for concern at the scope of that power, particularly that Northern Ireland. I was also interested in the the Human Rights Commission should not government’s draft response to the Committee duplicate the work of other bodies. They proposed a Against Torture on its one year review which NGOs number of suggestions as to how the scope of the have had sight of. One of the issues that the power should be limited. They say that the Human Committee picked up on last year was the need for 3358395003 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 29
7 December 2005 Ms Jane Winter and Ms Aideen Gilmore an emergency situation to justify such legislation. Ms Winter: We are still researching this issue The government was quite clear in its response that because it was the Northern Ireland Human Rights the powers could only remain in place while a public Commission that put out a press release saying that emergency exists. In this draft response to the one Aldergrove, which is a military base attached to year review, I was surprised to see the statement that Belfast International Airport, had been used for the government would like the Committee to be extraordinary renditions. I asked the Commission aware that counter terrorism legislation in the UK is what their evidence for that was and they pointed me not reliant on there being a state of emergency. The to a single article in The Guardian so we have now ECHR and other international human rights bodies asked the Ministry of Defence under the Freedom of have been clear that measures which eVectively Information Act whether any Belfast airports, bases derogate from international obligations and or airspace were being used for extraordinary threaten human rights protection must be required renditions. I rather suspect I am not going to get a by the exigencies of the situation and must be a reply to that question on grounds of national proportionate, necessary response. Therefore, we security but it does seem a question that ought to be are particularly concerned to see that we do not need asked and perhaps this Committee might get a better a state of emergency to adopt emergency legislation. answer than I can get, not only in relation to Aldergrove but in relation to other airports.
Q135 Chairman: On the question of extraordinary Q136 Chairman: Youhave no information renditions, when we had NGOs giving evidence to us yourselves? a few weeks ago, they told us that whilst there was Ms Winter: No. This is not the sort of information evidence of CIA planes landing at UK airports and that we would be likely to have. We are not supposed perhaps staying overnight and taking oV again there to know that it is going on. was no evidence of what was going on or who was on the planes. Do youhave any evidence of Chairman: Thank youfor yourattendance this extraordinary renditions involving Northern afternoon. It has been very helpful to our inquiry. Ireland airports? We will be publishing our report in due course. 3358395004 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 30 Joint Committee on Human Rights: Evidence
Monday 6 March 2006
Members present:
Mr Andrew Dismore, in the Chair
Bowness, L Plant of Highfield, L Campbell of Alloway, L Stern, B Judd, L Mr Douglas Carswell Lester of Herne Hill, L Mr Richard Shepherd
Witnesses: Ms Harriet Harman, QC, a Member of the House of Commons, Minister of State, Baroness Ashton of Upholland, a Member of the House of Lords, Parliamentary Under-Secretary of State, and Mr John Kissane, Head of Human Rights Compliance and Delivery, Department for Constitutional AVairs, examined.
Q137 Chairman: This is a resumed session with the overview of the substantive laws against torture Minister for the Department for Constitutional and how they are implemented to try and hopefully AVairs, which was held over from last time. I assist you with your inquiry and tooVer youthe welcome Ms Harman, Minister from the opportunity to consider the substantive law and the Department of Constitutional AVairs and Baroness means of implementation. This is the laminated Ashton of Upholland, House of Lords; and also grid we have shown you. We are responsible for John Kissane, whose job title I am not entirely sure ensuring that the substantive law complies with our of. What is your job title? obligations and that the procedures which place Mr Kissane: Head of Human Rights Compliance obligations on oYcials or anybody else are and Delivery in DCA. eVectively enforced; so that that is the kind of overview. Obviously, during the course of your Q138Chairman: Thank you. Do you want to make inquiry,if youhave any points where youcan see a brief opening statement, Harriet, or go straight that we need to strengthen, according to our own into questions? commitments and our international commitments, Ms Harman: Into questions. the substantive law or the way it is put into practice, obviously we are very committed to this Q139 Chairman: Can youtell usin general terms but we do not think we have the monopoly of what the DCA’s role is in ensuring that obligations wisdom on this, and therefore quite honestly I very under the Convention Against Torture are properly much welcome the Committee having chosen this understood, and inform policy formation and important issue for its inquiry. I hope that we will practice, in other government departments and be able today to tell youhow we see the picture, agencies? but if it can be improved, then so much the better. Ms Harman: Can I say by way of introduction that Cathy is the Minister in the Lords for DCA and Q140 Chairman: In that context, are there practical therefore takes responsibility for human rights in things that youmight have to do? Would,for the House of Lords; but additionally she has example, the Department advise on international responsibility for international issues in the DCA. legal standards when looking at diplomatic That is how we will hopefully assist the Committee assurances against torture, or would that be for the by dividing up our answers. Compliance with our Foreign OYce itself to do? obligations against torture: the first point to make Ms Harman: Looking at international legal is that without any mechanisms or any standards would be something that, if it was an international obligations at all, there is a very deep- issue for the Home OYce, they would look at it, seated, shared conviction of everybody in this no doubt advised by their legal team; if it emerged country, irrespective of political party or whatever that it was an issue for the Foreign OYce, they walk of life, or whatever their situation, that torture would look at it, no doubt with advice from their is wrong and that it is not something that Britain departmental legal advisers. Issues to do with would or should ever do or be involved in. That is prevention of torture arise in a number of diVerent the background. As far as the obligations across ways; but we have to be sure that we maintain the other government departments and the role of the high level of commitment we have against torture Department for Constitutional AVairs is and making sure that that is not rhetoric but that concerned, we, as we explained last time, are the it is reality, backed in substantive law. lead department within government on human rights policy, although obviously human rights Q141 Chairman: So youwouldget involved directly obligations fall on all other government in such advice to departments themselves? departments; but we are the lead department on Ms Harman: We are the lead department in human rights policy and on policy for the international treaty obligations and therefore our prevention of torture, both in the UK and oYcials would be discussing with oYcials in other internationally. In response to your inquiry into government departments. There is an ongoing torture we have specifically taken a further traYc, particularly with the Foreign and 3358395004 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 31
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane
Commonwealth OYce and also with the Home everybody complying with that general belief. Of OYce, which would involve oYcials on an ongoing course, you have to have substantive laws, which basis. place obligations and responsibilities on people, and by the same token give rights to people that are Q142 Chairman: Do youthink the natureand judiciable. We have a range of substantive laws here importance of the obligations under the Convention which apply to government agencies, public Against Torture are suYciently appreciated authorities, and which apply when people are acting throughout government? here in the UK and when they are abroad. That is the Ms Harman: I think they are appreciated substantive law. It is the responsibility of everyone endogenously, if you like, for the reason that I first to comply with the substantive law, wherever they stated: it is part of everybody’s assumption about are, and to carry out their duties in compliance with how they would go about their business in the the law. It is also our concern to make sure that Government in Britain. In terms of continuously should that not be the case, there is redress; so it is looking and scrutinising whether or not the system is not simply declaratory, it is actually enforceable. as it should be and whether there are any gaps, I Therefore the mechanisms are there, backed up by the right procedures. The responsibility lies at all think there is that recognition and commitment V within other Government departments, but there is levels, and rights are a orded to individuals to make in addition our responsibility as the lead sure that if the responsibility is not complied with department, and therefore light is shone on diVerent there is the opportunity of redress. parts of this issue in respect of diVerent Government departments from a number of ways—whether non- Q144 Lord Lester of Herne Hill: I was asking not governmental organisations, whether UN about that but about who gives the guidance in Committee, whether it is actions in Europe or very government and chases it up to make sure the law is importantly whether it is your inquiry. being obeyed through our positive obligations. Ms Harman: Probably the answer is that it depends Q143 Lord Lester of Herne Hill: I have never used on what youare talking aboutand which specific the word “endogenous” before. I think I know what example. If yougive an example, we couldexplain it means, but there is, as I understand it, a positive who within that agency would be responsible, obligation on the UK to make sure that torture and whether it is a military chain of command, the inhuman or degrading treatment or punishment do military police for investigation, the military courts, not occur within this country or anywhere else under or the MoD. It depends on the example that youare our jurisdiction. Who in the Government would talking about. We have lead responsibility for the have responsibility for ensuring that the positive substantive law for the overall policy and for being obligations are taken, for example, in the way that certain that there are procedures for implementing our troops are instructed, or customs and the law, but that does not mean that there is not immigration oYcers, in dealing with aircraft that responsibility across government to ensure that the land in our airports and so on? What is your law is understood and obeyed in all the things that understanding about what is meant by a positive government does. obligation? How is the positive obligation in fact translated into positive action to secure that there be Q145 Lord Bowness: In the reporting process, no torture or inhuman or degrading treatment or Minister, the UN Committee and NGOs give the punishment by any public authorities anywhere for Government credit for the serious way it has which we have direct responsibility? I do not know engaged with the reporting process, but nevertheless whether the word “endogenously” meets that point. NGOs have also given evidence that the process is a If it is endogenous, I think it means we do not need “ritualistic exercise” where there is not any to instruct anybody; but what I am after is when it is willingness to take actions on the recommendations not endogenous and when you need to give positive of the UN Committee. Has the Government’s guidance. Who does that and who is responsible for engagement in the reporting process brought about ensuring that that is done? I hope that the question any real changes in policy or practice? is clear enough. Ms Harman: The issue that is of the foremost Ms Harman: It certainly is. If I can just get out concern in response particularly to the UN of the way the endogenous/exogenous issue, Committee’s scrutiny of our substantive law and “endogenous” basically means coming from within, procedures is the issue of the defence to torture that and “exogenous” means being required from is in the Criminal Justice Act 1988, section without. Parliament has passed criminal laws, acts 134(5)(b)(iii). It provides a defence: “In any other of parliament, against torture. We have entered into case, lawful authority, justification or excuse under treaty obligations which commit us to prevention the law of the place where it was inflicted.” The against torture. That is something that we embrace question has arisen as to whether or not this could and wholeheartedly support; it is not an imposition provide a defence to an action in respect of torture from outside. More than that, we want to be part of that is being taken in this country in respect of a general international approach which levels up and torture that has been carried out in another country, improves the situation internationally. I would not but is a defence that would undermine our say that you would ever be in a situation where you international obligations and indeed our own just rely on goodwill and just assume that it is not the commitment to it. Therefore further consideration is British way of doing it, and therefore just rely on being undergone, and I have just been asking the 3358395004 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 32 Joint Committee on Human Rights: Evidence
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane
Chair and the Secretary of the Committee about statute law, and therefore the Criminal Justice Act your timing on this because it might be quite helpful 1988, the following year, was an attempt to put into to try and get back to youwith the outcomeof that law exactly what had been si gned up to in the consideration as to the appropriateness of that Convention. It was not to actually do something defence which the UN drew attention to. diVerent; it was to put into statute, into law, the protections that we had signed up to in the Q146 Lord Bowness: That is that specific, but there Convention. I think it is best always if youdo not are not any other specific changes to policy or have to have the courts relying on something else in practice that youcan point to that flow from the order to get to the right place. It is helpful if the greater involvement in the reporting process? statute law is as clear and as unambiguous as Ms Harman: I am sure that there is a lot of ritual possible, and that youdo not have to refer to some about the actual processes and certainly a lot of the convention, that it is there where it is. That was language is strange and ritualised. However, I do not certainly the intention of the 1988 Act. The question think that that should overlook or lead us to is whether or not in particular that defence at (iii) understand the fact that outside scrutiny, scrutiny adds anything to what already goes before it in from outside government or its agencies, is a very clause 134. If it does not add anything, what is the helpful thing. We would all like to believe that even point of it? If it adds something by way of protection if we were left entirely to our own devices we would against prosecution, is it actually what we want by always do the best and the right thing; but the reality way of a defence, or is it something we would not is that it is helpful to know there is accountability, want? That is why we are looking to see whether or that there has got to be openness and answerability; not it should stand as it is, whether it should go and those frameworks which require transparency altogether, or whether or not it should stand with allow us to do what we would hope we would do some sort of additional explanation. I do not think even now without that, but it would make it more we want to just count on the fact that the courts certain. There is a constant, ongoing process. It might refer to something else. The whole point of the might be ritualised, but from my observations of 1988 Act was to implement this, and since this seeing how we approach the work in the Department question has been raised and since your Committee for Constitutional AVairs, it matters. is looking at it, it provides us with a timely reminder to consider the extent of our compliance within the statute. I know the spirit is in the right place, but we Q147 Lord Plant of Highfield: I want to ask you have got to get the letter of the law compliant. about the tensions between Article 2 of UNCAT, which states that there are no exceptional Q148Lord Plant of Highfield: Is that also partly circumstances that may be invoked as a justification because the definition of torture in the 1988 Act is for torture, particularly in Article 2.3: “An order quite wide, and therefore you need these various from a superior oYcer or public authority may not defences, wider than the UNCAT ones? be invoked as a justification for torture.” On the Ms Harman: It is supposed to be more or less on all other hand, there is section 134 of the Criminal fours with the UNCAT definition, but in Justice Act 1988, where sub-sections 134(2) and parliamentary terms. It is supposed to be no wider 134(5) state that there is a defence of lawful and no narrower. Youare absolutelyright in saying authority, justification or excuse to a charge of that it is not supposed to say, “we are against torture where the oVence is committed outside the torture, but, oh, by the way, here are exceptional UK, if the jurisdiction in which the oVence is circumstances”; that is not the spirit of it. committed provides lawful authority, justification or excuse. On the one hand UNCAT says that there is no excuse and justification; and the Criminal Q149 Lord Plant of Highfield: If I can just finish that Justice Act 1988 says that there is. I understand the point, under the Criminal Justice Act Government’s position is to defend section 134 of “unintentionally inflicting pain” could be seen as the Criminal Justice Act but to argue that the courts torture, and that is the same in the Convention, I will be able to interpret section 134 compatibly with think. Perhaps this is a level of detail. the Human Rights Act by saying that there would be Ms Harman: I am just looking at section 134(1): a right to freedom from torture under Article 3 of the “Intentionally inflicting severe pain or suVering on ECHR. This is all a bit complicated and puzzling, another, where the oVender is a public oYcial or and I just wondered whether you think the person acting in an oYcial capacity who does such uncertainties about the operation of these two acts in performance, or purported performance, of themes in relation to torture and the uncertainties his oYcial duties.” I assume that unintentional acts generated by these things driving in diVerent would lack the relevant mens rea but asking me to directions would make prosecution of cases of enter into legal interpretation about something that torture very diYcult. is not actually in the statute I would feel, in front of Ms Harman: I would hope that they are not driving this Committee, with the amassed legal wisdom— in diVerent directions, that they are driving in one would be unlikely to venture into that. exactly the same direction, and that there would not be any question of it making any prosecution of Q150 Chairman: The Government consulted NGOs torture more diYcult. The Convention Against before Christmas on the draft response to the UN Torture was brought into force in 1987 but it was not Committee’s observations. When do youthink that in parliamentary-drafted language for British that will be published? 3358395004 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 33
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane
Ms Harman: Very shortly. The process is that it has but whether it is to be used in evidence in our courts, come to me. There was mention of the ritual nature if the judge holds that, yes, there is a suYciently of this—my instinct is always to try and turn these strong case that this was obtained by torture so as to responses into language that people can read and render it unreliable—because evidence obtained by understand, and understand the spirit as well as the torture is of itself unreliable. It was those sorts of letter. It is in the final throes of turning itself from questions when you were referring in your opening international diplomatic speak into something address, which we much appreciated, to which I hope an ordinary person can understand, implementation—DCA—implementation of policy and that that will be very shortly; and then it will be on torture with reference to the mechanisms, backed issued. It has been a helpful process. The NGOs have up by procedures. It is exactly on that that I am been very helpful in working with our oYcials on respectfully addressing you, and I wondered, if it is that. not inconvenient, if you could tell us exactly what your position is today. Q151 Chairman: Very shortly—before the Easter Ms Harman: Youhave raised a numberof recess? important issues, and I welcome the opportunity of Ms Harman: Yes, before your report is published addressing them, but also look forward to hearing anyway. further from the Committee on. Firstly, there is the question of the state of the substantive law. Does it provide a defence wider than our obligations that we Q152 Lord Campbell of Alloway: I am delighted to have undertaken should allow? In other words, is the follow the noble Lord, Lord Plant in this most substantive legal prohibition against torture erudite discussion about the state of the law, and I watertight enough? I have raised, in response to the very much sympathise with the way in which you raising by the UN Committee, one aspect of the had to respond to it because it is not so; it is not so. substantive law which we have a genuine query Youasked a simple questionat the end of it—forget about; but beyond that, beyond (iii), I certainly all the statutes and everything for a moment—is cannot see that the substantive law is not watertight, there any defence in law to intentional torture? I and not actually delivering the same as was expected would have thought there is not, but it is not totally to be delivered by the Convention. I would welcome plain. Here I come to it: what is the DCA attitude to the Committee’s views on that because that is a point this? Anyone can say they have been tortured when that has not been raised in the past. It is a new point. they turn up—an immigrant or anyone from I would be grateful to hear from the Committee. We anywhere—and someone has to decide whether that are aware of the (iii) point, and we are addressing it is true or it is untrue. If there is no corroborative and will get back to you, but beyond that we are not evidence, if there is no medical evidence, how is it aware that there is any weakness or loophole in the established that they have been tortured? That is the law that would give a defence to torture. We are not first stage of it only, because you come to the in the business of allowing there to be a defence of question of admissibility of evidence and it is not the torture, and no exceptional circumstances. That is same thing as intercept evidence. I deal with the point about the substantive law that you raised. admissibility of evidence. I asked these questions to The second point is about evidence; that if you want Lord Newton and Lady Hayman in much the same to bring evidence that youhad been tortured sort of context, and they took aboard the point that suYcient to mount a prosecution, how would you there had to be, for the purpose of admissibility of establish that evidence? That is a question of the evidence said to be taken under torture—that evidence in each and any case. I would say, for someone had to decide whether it had been or had example in the case of Zardad, despite the fact that not been. The suggestion was, which they broadly we were here dealing with torture by a foreign accepted—and I have spoken to both of them national, and he was torturing other foreign since—that there should be a High Court judge nationals abroad, with most of the evidence abroad, trained for security who hears the application ex and yet it being prosecuted in the British courts— parte and decides the first fundamental question, that despite that he was convicted and sent to prison. which is: were they tortured; is there a strong case of That shows not just a paper commitment to torture that he should say, “yes, the evidence should gathering the evidence where there has been torture, be excluded”? It is a qualitative decision. It is not a but a preparedness, once somebody enters our wholly judicial decision because you cannot have the jurisdiction and where there is evidence of torture, to defence there because of security reasons. This is the marshal that evidence and bring it to court so that first practical question that I am asking the DCA people can be brought to account. It is true to say what is their attitude? I have asked Lord Newton that there is not any other jurisdiction that is and Lady Hayman, and I know their attitude, but I prepared to extend its commitment against torture do not know the attitude of the DCA or indeed of in the way that our substantive law enabled us to do Y the Home O ce; and it is quite possible that they do in Zardad. not always agree and that they would have another attitude—I do not know. That is the first problem. The second is this: for the purpose of intercept Q153 Lord Campbell of Alloway: Could I ask for evidence one has to distinguish between its use in clarification? In that case, with which I must admit I order to put a man on trial, which is not in question am not familiar, who was it who decided whether and was used extensively and eVectively to get hold there had been torture or not? Was it an issue? Was of the Mafia gang in America recently—that, yes— it decided as an issue whether there had been torture? 3358395004 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 34 Joint Committee on Human Rights: Evidence
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane
Was it argued by the defence that there had been Q155 Lord Judd: Can we turn to diplomatic torture? I am only asking because it matters the assurances. A number of witnesses in presenting whole time when youare on the machinery and their evidence to this inquiry have argued strongly seeing how did it happen. How was it established that diplomatic assurances against torture are in that this evidence was taken under torture—on say- fact and in practice unworkable. In support of this so or— contention we have been referred to cases elsewhere Ms Harman: It was not about evidence taken under where there is good evidence that people who have torture, it was about the evidence of torture being been deported and where assurances existed were undertaken. Basically it was a matter for the in fact subsequently tortured. Is the Government prosecution service, the Director of Prosecutions, concerned that despite the best eVorts of those to decide that there was evidence that would more involved in negotiating and monitoring diplomatic likely than not lead to a conviction and that it was assurances, that these assurances could prove in the public interest that there should be a ineVective in preventing torture, and as a result of prosecution, and the consent of the Attorney that leave us in breach of Article 3 of the Torture General was required and indeed was given; and Convention? then the case went to court and the defence argued Baroness Ashton of Upholland: As youknow, Lord all the defences, as they do; and a jury decided, and Judd, the whole purpose of the memorandum of he was convicted. Although it was not understanding is to try and provide practical and straightforward in its context, it was fed into the very eVective means by which we will demonstrate British Criminal Justice System. You also raised to the courts that we have fulfilled our obligations the point about the admissibility of intercept internationally as well as ensuring that we are able evidence, and admissibility of evidence that might to deport appropriately; so they should be judged have been obtained by torture in other as they will be by the courts on the practical jurisdictions. We are assisted by the recent ruling measures taken within them. I am aware of the of the Judicial Committee of the House of Lords experiences for example in Sweden with in Re A in December 2005, which was able to set deportations where that has been looked at, but in out the framework on which these issues should be looking at how we draw up the MOUs, if I may call approached, which we welcomed and said was them that, we have been very mindful of experience extremely helpful. We did not feel that it required elsewhere. us to do anything diVerent than what we were already doing, but it made a very robust, clear framework which could give us confidence that we Q156 Lord Judd: There is another issue here could follow. The answer to that is Re A. because the states with which the memoranda are being negotiated, as far as I understand it, are Q154 Lord Campbell of Alloway: How do youdeal already parties to the Convention Against Torture; with the security problem? You see, so often in so why are these memoranda necessary? They are these cases youhave the securityelement, “you necessary because, presumably, there is anxiety that must protect our sources”. Even in the old days— torture is still continuing in those countries despite and I was involved in this—youhad to drop a them being parties to the Convention. If we make prosecution because you could not protect your specific bilateral agreements, is there not a danger sources if you were going to have cross- that in doing that we appear to be condoning examination. This is very often tied up with the torture for others not covered by those agreements; security services and security evidence, and the and does that not in fact undermine international intercept evidence. Do youreject the concept that law on the prohibition of torture? there should be a judge cleared for security who Baroness Ashton of Upholland: Lord Judd, I do not should make these decisions as to admissibility? think that is where I would take our logic and What is the attitude of the DCA to that reasoning in terms of these memoranda. Youwill proposition, which commends itself to Lady know that there is a concern to ensure that when Hayman and Lord Newton? we are looking at deportation we have done Ms Harman: The question of the admissibility of everything in our power to ensure that those intercept evidence is one that I am sure everybody deported will be treated properly and fairly; and on will be aware has been the subject of considerable that basis it seems appropriate to discuss with the discussion, and in particular the need to balance the particular states—you will know we have desire to bring evidence before the court; but on the agreements with Libya, Jordan and Lebanon to other hand the desire to protect the security services date, and ongoing discussions elsewhere—to see from disclosures which might expose them; and we whether we have ensured these people are treated are of course aware that in many other in the best possible way when they return to these jurisdictions, particularly other jurisdictions in countries. I do not see anything wrong in seeking Europe with which we have a close relationship, to do that. I do not think it does undermine in any intercept evidence is available and that is something way either our obligations or in any way suggest which is under consideration. that we condone anything else; we are simply Chairman: This is an issue we are looking at in dealing with very particular individuals in very another inquiry actually, Harriet, so we can come particular sets of circumstances, and behaving back to that point in our other inquiry. appropriately in that way. 3358395004 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 35
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane
Q157 Lord Judd: Surely there is an issue, if we are terms of the memoranda with Jordan, Libya and apparently placing confidence in a regime with Lebanon suggest that diplomatic considerations which we have an agreement because we are fairly have already had an eVect? certain they do practise torture, we are basically Baroness Ashton of Upholland: No. I think what confident about that regime, but actually giving youare describing is a situationwhere within the credibility to a regime that is in contravention of context of a particular nation the memorandum is the Convention. discussed and, yes, negotiated in that sense between Baroness Ashton of Upholland: What we are doing the two states concerned. We would not expect, and is talking to governments in other nations, I certainly would not expect, the memoranda to impressing upon them the importance that we look identical in every case because there would be attach to these issues, making sure that we have diVerent reasons and diVerent discussions that have adequate steps within a memorandum, that they taken place. It does not mean there is anything are, in response, taking their obligations to these fundamentally wrong with that, but it just means individuals extremely seriously, and that we do this that we have looked at each case appropriately and at the highest possible level to give it the highest separately, and in the end the courts will decide if possible eVect. I think that is completely this is the appropriate way forward if a appropriate in terms of how to deal with these memorandum should enable us to deport or not. particular individuals in these particular situations. Q160 Baroness Stern: Continuing on the subject of Q158Lord Judd: Youwouldagree that if the diplomatic assurances, I am concerned about Government has all the commitments to which the monitoring. The organisations that might have Minister of State has already referred—and I do been asked to monitor the diplomatic assurances not question that that intellectual and moral such as Human Rights Watch and Amnesty commitment is there—youdo not believe that the International, I understand are not prepared to do right thing to do is to have nothing to do in this so. I also understand—and it would be helpful if context with governments which we suspect are youcouldconfirm this—that the Government is practising torture. now looking for domestic human rights groups in Baroness Ashton of Upholland: What we have said, the countries concerned that might be able to do and youwill be very well aware, is that when we are this. Can youfirst say if youare looking at dealing with individuals where we think it is right to domestic groups; and secondly how will you find deport them, we need to look very carefully at the reliable and independent bodies? I am sure you circumstances and our concerns. Our first have heard of organisations called Gongos, which obligation is to our own nation and our people and stands for government-organised, non- within that our international obligations weigh very governmental organisations. I am sure you have heavily; so it is to ensure that we can deport people heard of them! People who work in this field will where we believe it is in the best interests of our say it is extremely diYcult, even if you know the country but also fulfil our international obligations country and work there, to assess whether an to make sure that they are not tortured or treated organisation in a country which has, shall I say, inhumanely. Those go hand in hand; you cannot problems of torture, is independent. I would be separate them. very interested to know, if youagree that that is what youare looking for, to know how the Government is going to assess whether a human Q159 Lord Judd: Before I leave this matter, can I rights NGO so-called in one of these countries is draw your attention to the fact that as we have read independent and reliable and will provide them, each memorandum provides for prompt and monitoring information that we could all be regular private visits from representatives of satisfied with. independent bodies nominated jointly by both Baroness Ashton of Upholland: Youare correct in states; however the minimum frequency of visits is your assertions about the NGOs in terms of diVerent for each memorandum. Whilst the Libyan Amnesty and others, and I believe they have given and Lebanese memoranda provide for medical evidence to your Committee. Secondly, there is an examination to assess any ill treatment, the appropriateness for domestic organisations to be Jordanian memorandum does not. None of the used in many cases because they understand the memoranda, incidentally, make clear that the country concerned. They know the landscape and medical personnel involved will be independent of may already be working on these issues in any the detaining authorities, or whether a medical event. I do not think there is anything necessarily examination will take place privately without inappropriate with looking at domestic representatives of the detaining authorities, or to organisations. One of the challenges for any NGO whom, if anyone, it will report. Under the and any voluntary organisation—and I speak from Jordanian memorandum the monitoring body personal experience—is to demonstrate with great reports to the authorities of the sending state, conviction that one has absolutely nothing to do whilst under the Libyan and Lebanese memoranda with government in any circumstances. I imagine the report is to be made to both states. that what the experts who are looking at this would Realistically, how great an impact do diplomatic look for would be exactly the same things that the considerations have on the negotiation and courts look for here, which is funding monitoring of assurances? Do not the diVering arrangements, support and advice given, what kind 3358395004 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 36 Joint Committee on Human Rights: Evidence
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane of work they do, their relationships—which one absolutely understand that we are expecting their hopes do exist between government and the obligations to be fulfilled—that they entered into organisations—but also the way in which the that spirit in which the memorandum was signed. organisation has been set up. If one can look at all those factors, one can, again, make an assessment; Q163 Baroness Stern: Could you give any examples but in the end, as I have repeatedly said, it will be of perhaps one thing youmight do, if it transpired for the courts to determine if we have got that right. that it had not resulted in— Baroness Ashton of Upholland: We would certainly Q161 Baroness Stern: So it is envisaged that the ask immediately to have an understanding of what British embassies, the missions abroad, will be had happened, but I think for me to go down the carrying out these analyses of local NGOs in order road of saying, “well, if they do not do it this is to decide whether or not the British Government what we will do to them” is completely sees them as independent enough to do the approaching this from the wrong end. As I said monitoring. there is a properly done agreement between two Baroness Ashton of Upholland: I do not think I nation states that will be honoured, and not dealt mentioned the embassies or the missions. I said that with by saying, “oh, and by the way, if it is not oYcials dealing with these issues would be involved honoured we will do the following things.” We will with that. The only one I have information on is of course make sure that we work closely to the centre in Jordan that was set up in 2003, which establish that people have been treated properly is sponsored and supported by Amnesty and by and fairly and want to take action. What that UNESCO and the Westminster Foundation. I would be would depend on what had happened. think, Baroness Stern, youand I wouldagree that an organisation sponsored and supported by those Q164 Lord Lester of Herne Hill: Baroness Ashton, organisations probably would be regarded by any it is probably a form of human rights blasphemy of us as having a degree of independence that is to say, before I ask my question, that I agree with relevant and appropriate in this case. Again, if the youand the Government on what youhave been courts felt there was an issue about the saying, and I do not agree with Amnesty independence of an organisation, that would be International for reasons I will not now go into. something government would have to address in Having said that, I am very concerned about the the course of the courts making a decision on Government’s position in the Chahal case. If I can deportation. explain the concern, Chahal has been followed; it is a majority decision of the Grand Chamber of the Q162 Baroness Stern: That was very helpful, thank European Court, and they followed it repeatedly in you. The diplomatic assurances are not legally subsequent case law. As I understand it, what the enforceable and there is no remedy if things go Strasbourg Court said was that you cannot balance wrong and there is a breach. What would the the absolute prohibition against torture against Government do if it became clear that the person considerations of national security. As you know, deported subject to assurances had actually been that is what the Supreme Court of New Zealand tortured? decided this summer, contrary to the decision of the Baroness Ashton of Upholland: The critical thing Canadian Supreme Court as well. I know you have about the way the memorandum works—and this support from a few other Member States of the may be stating the obvious as far as you are Council of Europe, but as the Minister responsible concerned, Baroness Stern, but it is really collectively for complying with the Convention important—is the way the memorandum is set up. Against Torture, do you not risk, if youwere to It is absolutely vital it is understood that in the succeed—and I hope you will not—if you were to negotiations for this memorandum it is expected— succeed in Strasbourg would you not risk and I believe expectations have been realised—that undermining the whole point about prohibition the nation or state responsible for the against torture, which is that it is absolute and memorandum with us takes very seriously its cannot be balanced in some way against other obligations under that. These are not easily signed considerations? documents and are not easily ignored documents. Baroness Ashton of Upholland: I disagree with the Therefore we must begin from the principle that the principle that we would be undermining it. What states so doing are acting in good faith. I do not we agreed to do—and, Lord Lester, youand I have make any assumptions that they are somehow discussed this in the Immigration Bill going going to ignore them. If there is an issue, then the through the House of Lords as well—so I do not ambition is—well, we have monitoring agreements have to tell youthat what we are looking to do is but that will become very clear and we will use the to get the courts to think and look again at the normal routes initially to ask for an immediate minority view expressed in Chahal where 7 out of review of the position. What other action we then 17 took a diVerent view. It is our contention that decide to take will in part depend on the seriousness if an opportunity arises, which it has through the of what has happened and our views on how best Dutch case, that we would ask the courts to review to deal with it. It would be wrong for me to come this—but we would always be bound by the up with a list of things we might do at this stage decision of the courts, and would not move away when our principal desire is to make sure those from that in any way. Because it was an interesting engaging with us through a memorandum minority view, and because it is ten years since 3358395004 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 37
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane
Chahal happened, we think the time is right to look as extraordinary rendition is concerned, I have not at that. If the courts determine that there is a put on the grid “rendition” or “extraordinary” diVerent approach to be taken to Article 3, then we rendition because neither are terms known to will follow that. We are simply asking them to look English law. We have extradition, deportation, again and to give us a view. The reason the other abduction, assault, torture, kidnapping: these are courts followed Chahal is because it set a precedent, the terms which we understand and which provide not because they were independent decisions. You certainty and clarity. Therefore, I find it helpful to and I have discussed this before. look at what might be the act that is alleged and what substantive law would apply to it. Q165 Lord Lester of Herne Hill: I do not want to discuss that right now. Can I move on to the next Q166 Lord Lester of Herne Hill: The reason, in my topic, which is extraordinary renditions. I asked understanding, why it is called extraordinary originally about positive steps with positive rendition is that it happens without due process or obligations, and my questions are to do with how due process of law. It is called “rendition” because the Government is discharging its positive it is about the transfer of someone who is a obligation to ensure it is not complicit in acts of prisoner, and the reason why it is called torture with regard to civil and military aircraft “extraordinary” rendition in this case is because it that come into our air space and use our airports. is about the transfer of a person to a place where I say civil and military, and give an example of a it is reasonably suspected they will be tortured. Gulfstream aircraft that is chartered by the CIA— That is what I think it means as a description, but it could be civil or it could be military—that comes I apologise to the Chair because he was going to here and has some kind of clearance. During the ask the question before I came in. Perhaps I can debates on the Civil Aviation Bill Baroness return to this afterwards. D’Souza tabled an amendment that would have Ms Harman: Can I follow up Lord Lester’s point? given a duty on our authorities to investigate I am sure that you are right about what generally whether there is a suspected torture when aircraft the terms mean, but when we are dealing with have used our airspace and landed here. The issues which are as important, of the rules answer then given by Government was that the governing extradition, the rules governing Chicago Convention prevented that from deportation, the rules against torture or abduction, happening. In subsequent answers given to then it is helpful for us to focus on exactly what questions I have asked, the Government has the law does or does not allow; and that provides changed, I am glad to say, from that position to us with a real sharpness and clarity. I am not saying agreeing that the Chicago Convention cannot be that the terms “extraordinary rendition”— used as a shield and that the Torture Convention rendition merging into extraordinary rendition— and the other international human rights treaties in can provide a kind of mission creep, but from our eVect trump the Chicago Convention as does point of view in the DCA we want to know what custom of international law. Does the Government is a criminal act and what is not a criminal act. Acts consider that the Chicago Convention prevents the that are to facilitate or to conspire in or to be search of aircraft suspected to be involved in acts complicit in or to assist in torture are criminal, of extraordinary rendition? whatever youcall them; and the responsibility is to Ms Harman: As I sought to show by giving this investigate and bring people to justice. I am sure grid of the substantive law to the Committee, this youwill know, Lord Lester, more than I do, where sets out what the legal obligations are. There is in the terms “extraordinary rendition” and addition a duty, which the UK has undertaken, to “rendition” arose, but I think it is helpful for us to investigate positively where there might be stick to things that are clear in law. allegations of torture having taken place. The Chicago Convention was a set of rules in order to Q167 Chairman: The clear allegation is that the facilitate free movement of air traYc. I do not think CIA are taking prisoners from A country to B the notion that the Chicago Convention should be Country, passing through UK airports, the purpose a shield behind which acts preparatory to torture of which is to interrogate them in a perhaps less should take place is in any way, shape or form squeamish country—let us put it that way—and acceptable. We have signed the protocol about may well subject them to torture. That is the basic monitoring nationally and internationally, and allegation, so we are in the territory of Article 6 of monitoring our own obligations. The question of UNCAT, which requires that where there are the relationship between our obligations we have credible allegations of torture, attempted torture or entered into internationally about the prevention of complicity in torture—forget the extraordinary torture and the Chicago Convention, in terms of rendition terminology—there should be a how we monitor compliance, will no doubt require preliminary inquiry into the facts and immediate us to look at this, but there is an obligation to measures taken to secure suspect’s presence in the investigate. That obligation lies with any of the jurisdiction. Do you accept that that is a basic relevant investigating authorities, and the Chicago obligation of the Government in those Convention should be a facilitation for air traYc circumstances? travel, which should not be a shield behind which Ms Harman: Yes, that is an obligation we have people can get away with acts that are part of a entered into, and allegations require to be process of taking people oV to be tortured. As far investigated by the relevant authority. 3358395004 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 38 Joint Committee on Human Rights: Evidence
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane
Q168Chairman: So is the Government the moment to investigate anything because there investigating the allegations of complicity in torture is no evidence that there is anything wrong with it. evidenced by the flights that have passed through For example, if there was transfer under extradition UK airports? we would not necessarily have to investigate it. The Ms Harman: I think the relevant investigating question is whether or not it is related to moving authority is the police rather than the Government, people for the purpose of torture. The Liberty and they have their own rules and obligations, and allegations I understand are on the desk of the it is for them to decide whether or not the allegation Chief Constable of the Manchester Police who will seems to indicate that it is required for them to do no doubt report shortly as to what further action further investigation. It is the responsibility for he plans to take arising out of that. I would the police. definitely agree with the thrust of your point that it is our obligation to be satisfied that the Q169 Chairman: The obligation is on the investigating authorities are prepared to investigate Government itself under Article 6. and do undertake investigation where there is need Ms Harman: The obligation is on the Government to do it under Article 12. to ensure that the acts in terms of the investigations are carried out so that the obligation flows down from the obligations entered into in the criminal Q172 Chairman: In that case could I put to you the law and then the accountability is back up through question of the independent memorandum the Home OYce to the House of Commons, but it prepared by Senator Marty of Switzerland, who is does not mean that they do it themselves. the rapporteur in the Council of Europe following the assembly on allegations of secret detentions in Europe. His memo reports clear evidence that there Q170 Chairman: If this investigation is to be done are individuals who have been abducted, detained properly then the Government has to take active and transported within Europe and handed over to steps to inquire whether chartered civil aircraft countries where they face torture. He has found refuelling in the UK involve the transfer of evidence of this. Has the Government analysed the suspects. That is something the police cannot really evidence that he has come up with and, in do. Has the Government made bilateral contact particular, the extent to which any UK airports with, for example, the American Government to may have been involved in that? ask them these questions? Ms Harman: I cannot remember which particular Ms Harman: Youwill have seen the questionsthat one those allegations were. Can I get back to you were put by the Foreign Secretary to the US on that? Secretary of State on behalf of not only the UK Government, but on behalf of Europe during the course of our presidency, and you will have seen Q173 Chairman: This was a paper of 22 January her answers. That does not change my answer to 2006. There was also a further statement on 13 youwhich is that those obligations arising under December 2005. This is the Council of Europe’s the substantive law to investigate and to ensure that inquiries into this and they found evidence and on our laws are enforced apply. the basis of that evidence I understand that a Chairman: In practical terms, if it is going to number of other European States were also happen, it is going to have to be done. Richard involved in the inquiries. Shepherd has to leave so we will have to adjourn Ms Harman: I am advised that there are no to find a replacement because we will become allegations of any specific UK involvement or inquorate. involvement of UK territory, but obviously we need to work with our European allies, particularly The Committee suspended from 4.33 pm to 4.43 pm in relation to the implementation of the protocol which requires us actively to monitor what is Q171 Chairman: I was in the middle of asking Ms going on. Harman about the obligation under Article 6, in particular the position in relation to the Government as opposed to the police—inquiries Q174 Chairman: Germany, Italy and Spain are Y that the police would find very diYcult to conduct doing o cial investigations into this. Why are we without Government involvement. The question I not? had just asked Ms Harman was whether the Ms Harman: If there is an allegation that the Government was taking any active steps to inquire substantive law as it applies within our jurisdiction whether chartered civil aircraft refuelling in the UK to actions both within our jurisdiction and outside were involved in transfer of suspects. of our jurisdiction, if there are any allegations that Ms Harman: Our obligations under Article 12: the law has been breached then the investigation “Each state party shall ensure that it has competent will take place and the enforcement procedures will authority to proceed to a prompt and impartial follow on from that. Either there have not been any investigation wherever there are reasonable allegations that specifically involve the UK, or else grounds to believe that an act of torture has been if there have been they will be being investigated, committed in any territory under its jurisdiction,” but as to those particular ones that you have raised or acts preparatory to. I have added that myself. I I will have to ask to be able to get back to you do not think there is an obligation as it stands at on that. 3358395004 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 39
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane
Q175 Chairman: The Article 6 obligation is where partial protection by the substantive law. We do there are credible allegations. It is not necessarily not want partial protection; we want complete evidence. It says “credible allegations of torture”. protection. We do not want it to be complete in That amount of information that has now come rhetorical terms but unenforceable and ineVective through to me seems to suggest “credible and we do not want it to be frustrated by the lack allegations”. Have any inquiries been made into the of the machinery to investigate allegations. That is origin, destination and names of passengers held on our position and we would want to make sure that the aircraft? that position is carried out in practice. I just cannot Ms Harman: We were just discussing this amongst deal with those specific allegations that youare ourselves and our view was that there was nothing talking about but we will get back to you on that. in that report that actually was an allegation requiring of investigation, but perhaps I could ask Baroness Ashton to add to that, if she will. We are not reluctant to look at these things. We take our responsibilities very seriously, but I am left with a Q177 Lord Lester of Herne Hill: Could I come back question mark here. to the Chicago Convention. Youhave very Baroness Ashton of Upholland: We will obviously helpfully agreed that it cannot shield practices that look at what the terms of the investigations are that involve risk of torture. The other aspect is that have been undertaken in the countries you have under the Chicago Convention, and under the named. Certainly in my role in Justice and Homes regulations made under the Chicago Convention, AVairs in the European Union nothing has come the United States has to notify the United to my attention about the nature of those Kingdom of military aircraft coming into this investigations, but I will undertake to look at that country. That would apply to a chartered civil and to report back to the Committee. My aircraft like Gulfstream if used for military understanding is that we have an interim report purposes. So far as civil aircraft are concerned, before us whereas yet there is nothing that we are in again information has to be provided to the need of investigating, but we are waiting for more authorities in this country before our airports are information before making a final report and we used. In the Republic of Ireland there is the same will come back to the Committee as we get the uproar about the use of Shannon, for example, by information available. the CIA in multiple flights. The only way in which the proper authorities can, by which I mean Parliament, know what has been going on is if the civil aviation authorities were able to reveal what information they have about the civil and military Q176 Chairman: I am sure you have seen that the flights to this country over the last reasonable Foreign AVairs Committee recommendations and period of time and whether there is any possibility conclusions relating to this and, without wishing to that they are being used for acts of extraordinary prejudge the views of the Committee, I would be rendition involving the risk of torture. The problem very surprised if we came to a diVerent view about is complete opaqueness. The European scrutineer this. Is this really a case of hear no evil see no evil that youmentioned, Mr Dick Marty, is looking at as far as the Government is concerned? There are aircraft log records under the Eurocontrol system, overwhelming levels of allegations now, but the United Kingdom Government must have investigations elsewhere, and the case seems to be knowledge about its airspace and how its airports appearing that the Government is turning a blind have in fact been used. That is information that the eye to it. Foreign AVairs Committee was asking for and Ms Harman: We are certainly not turning a blind could not get. That is the information that we need eye to it and would not want to turn a blind eye to have ourselves. If there is not to be a public to it for the reasons I said at the outset which is inquiry of that kind, it would be enormously that we are—it almost goes without saying—totally helpful if that information could be provided to us against torture and would not want anything to be before we complete our report because that is the happening within our jurisdiction that we were positive obligation side. We have a positive turning a blind eye to which was part of obligation to find out the facts and to report the engagement with torture. You have raised a facts so that the public know what has been going particular point about particular allegations. In on. That is what the Irish are also trying to relation to the allegations made in relation to ascertain as well. Manchester Airport in relation to Liberty, that is Ms Harman: I understand that Senator Marty, who being looked at by the Chief Constable. The is chair of the Legal AVairs and Human Rights process is the relevant investigating authority needs Committee, has produced an information to look at it. That is how we conduct investigations memorandum on 24 January which was debated in in relation to criminal activities. If there is anything the Parliamentary Assembly on 26 January and his beyond that that we need to tell the Committee I final report is due in April. No doubt when he looks will make sure that we get back to you in writing at the systems that are in place for transport across very promptly in case there is anything we are Europe we will consider very carefully any missing here. I would not want the Committee to proposals that he should come to make. The get the idea that we were happy with the only arrangements that are in place for US military 3358395004 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 40 Joint Committee on Human Rights: Evidence
6 March 2006 Ms Harriet Harman QC MP, Baroness Ashton of Upholland and Mr John Kissane aircraft, or those operating on behalf of the US Q180 Lord Campbell of Alloway: Therefore is it the military visiting UK airfields—US military aircraft policy, or will it be the policy, of your department, or civil aircraft on Government business—need no or the Home OYce, or both, to find out from the clearance to use UK military airfields. However, Civil Aviation Authority about these planes aircraft with VIPs or dangerous aircraft need to be coming in, who is in them and where they are notified in advance. Flight plans are submitted going, and make proper inquiries? Who will take under normal air traYc rules. Military airfields are charge? Is it your department? only required to collect information on the Ms Harman: The rules on providing passenger lists outbound destination, aircraft registration, owners are that international and national aviation and pilots’ names. It might well be that this is an regulations do not require the provision of passenger information when transiting UK area when we come to considering the report of territory or airspace. As far as the Department for Senator Marty and we come to considering the Transport’s records of the flights alleged by implementation of the new obligations we have Amnesty and the question of does the Department undertaken under what is described as the for Transport hold records, the answer is that it “Optional Protocol”, i.e. the protocol for does not. The Department of Transport does not monitoring, that these issues are looked at again by issue operating permits to foreign aircraft operating the relevant Government departments. on a non-commercial basis and consequently does not hold this information. What I would go back to say is that these are issues which might fall to Q178Lord Campbell of Alloway: Putting it very be considered again under the question of our simply, the Civil Aviation Authority knows what compliance with this optional protocol on the plane is being used for, where it lands and the monitoring which we entered into which requires people who are in it. They know all that. Do they us to internationally work together to make sure report that flight to the Home OYce, to the DCA, there is transparent and global monitoring. I have to the Foreign OYce, or do they just sit on it? What set forth the substantive law and the procedures. happens to it? That is already very tough but if it can be made Ms Harman: The rules about civil aviation are not tougher then so much the better. necessarily the ones where we are concerned about whether or not there might be some issue of Chairman: I know youhave to leave now, Ms transfer. Harman. I am sorry that the session has been disrupted for one reason or another. We have some other questions which we will put to you in writing. Q179 Lord Campbell of Alloway: We are talking Thank you for your evidence. We will adjourn for about torture. We are talking about these planes a couple of minutes while we change witnesses. being used for the purposes of torture in other parts of the world. The Committee suspended Ms Harman: Yes. between 4.58 pm and 5.00 pm
Witnesses: Mr Keir Starmer QC and Ms Jane Gordon, Human Rights Advisers to the Northern Ireland Policing Board, gave evidence.
Q181 Chairman: I welcome to the witness table Mr Starmer: Youhave ourreports and one of the Keir Starmer and Jane Gordon for what I hope will things youwill have seen from that is that we have be a slightly shorter, not so disjointed, session to had pretty unrestricted access to policing talk about various aspects, in particular of AEPs. operations in Northern Ireland involving the use of We know that youhave given usa corrected impact rounds this summer. The reports we have memorandum in relation to one of the things that written are detailed so others can understand what was in a previous report. I do not know whether we have access to and form their own opinion of youwish to formally state yourposition on that? our conclusions. Mr Starmer: Youhave the letter. When Jane Winter gave evidence to your Committee on behalf Q183 Chairman: Turning to the questions now, of British Irish Rights Watch she attributed various how would you respond to the UNCAT comments to me. They were not comments I had recommendation that plastic bullets should be ever made and I simply wanted to put the record withdrawn from use in Northern Ireland? straight. I have spoken to Ms Winter about that Mr Starmer: I have been looking for that and she accepts that she misunderstood what I was recommendation. I have pulled out the UNCAT saying but it was her honest view put forward at Report. The last three reports say that plastic the time to the Committee. bullets or impact rounds should not be used as a means of riot control rather than withdrawn all together. That is a really important distinction. The Q182 Chairman: Do youwant to make any rules applying in Northern Ireland are that impact preliminary comments before we start? rounds can only be used against an identified target 3358395004 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 41
6 March 2006 Mr Keir Starmer QC and Ms Jane Gordon and not as a means of crowd control. Therefore, if doing is using impact rounds when particular the concern of UNCAT is that they are used for individuals have been identified either with blast crowd control, we would agree if they were being bombs or petrol bombs in their hands. When we used for crowd control. But we have not come say that they are used in the public order context, across that in the operation that we have they are used at those identified targets, as Mr monitored. Their use as a targeted response is Starmer said. slightly diVerent. Chairman: I will ask Baroness Stern to talk specifically about the incidents over the last Q184 Chairman: Given the potential previous summer. versions of plastic bullets to cause injury potentially amounting to inhumane and degrading treatment, Q186 Baroness Stern: If youfind that my questions would you think that the deployment of AEPs cover what youhave said already, justsay it again inevitably carries the risk of human rights briefly so that we can make sure that we have all violations? the information in the best, most accessible form. Mr Starmer: No. We have thought long and hard You pointed out in your letter to us that you do about that and we have spoken to a number of not consider that the Police Service of Northern organisations about that. The AEPs are intended Ireland’s planning of their response to the parades as a non-lethal response where there is a risk to life or serious injury. The reality of what happened in last summer had “backed them into a corner”— the operation that we looked at was that for some that is the basis of your talking to us—and had time the police were using water canon to try and forced the use of—shall we call them “impact control violence against them when blast bombs rounds” instead of “AEPs”. You have been and petrol bombs were thrown. It was then a monitoring the Police Service of Northern Ireland question of how do you target an individual who more widely following these incidents. Have you is about to bomb you? If it is not something like seen occasions where use of impact rounds was impact rounds, then unfortunately the option of avoided through careful planning and, if you have, live fire has to be considered. It is at that point that why was this not possible in the Ardoyne and impact rounds play a part. We have taken the view Whiterock Parades that we are discussing now? that impact rounds are not in and of themselves Mr Starmer: Yes, we have come across a number of incapable of being compliant with human rights occasions when impact rounds could lawfully have legislation because everything depends on the been used in the sense that the threshold for their circumstances in which they are used. use may have been reached, but they were not because the police were able to deal with the situation another way. One of the crucial Q185 Chairman: Youare satisfied that they are not being used for the purposes of crowd control? determining factors—it is the one that led to the Mr Starmer: What we looked at are particular first discharge of AEPs in Ardoyne this year—is operations in Northern Ireland where they were whether the police can withdraw. If they can used this summer. We have been on the ground or withdraw and take any potential violence out of the in the control room watching everything that is situation that is their preferred option. The Y happening and listening to the instructions. We di culty in July when they were first used this year have not come across—and we have reviewed for which we were watching was that youhad on one hours the available video footage—any use of side of the road a Nationalist community throwing AEPs for crowd control; i.e. untargeted. It is fair a huge amount of stuV at the police, youhad 20 to say there are only two of us and there are a lot yards away on the other side of the road a crowd of screens and a lot of video footage. The of Loyalists who may well have responded and the ombudsman in Northern Ireland is looking at each police were in the middle. We were monitoring how and every discharge of impact rounds and therefore the decision was being taken to first use the AEPs we have only come to general conclusions. We have and one of the questions that Gold Command seen no evidence of that. We will obviously review asked was whether the police could get out of that our position when we see the ombudsman’s report. situation and avoid it all together and they took the We can, from the available video footage, hear and decision that they simply could not because see the rounds being discharged and form a view immediately they withdrew the crowd from one as to whether they are being used for crowd control side might have gone straight to the other side and or not and we do not think they have been. One of youwouldhave had hand-to-hand fighting. That is the recommendations we make in our report is that when it is at its most acute because if the option to a lot of video footage that the police have in respect withdraw is there we have seen it being taken rather of policing operations where there has been impact than go up a gradation in the use of force. rounds discharged should be disclosed to the public so that people can see for themselves what has been happening and how they are being used. Q187 Baroness Stern: Your report on these two Ms Gordon: There might have been some confusion parades last summer concluded that the use of because the riots that we were specifically looking impact rounds was in all cases justified, at least in at involved a large number which obviously general terms given the level of attack on the police, constituted a crowd, but in terms of the monitoring and youhave graphically explained that justnow. that we did it is very clear that what the police are Given the lack of information about the nature and 3358395004 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 42 Joint Committee on Human Rights: Evidence
6 March 2006 Mr Keir Starmer QC and Ms Jane Gordon extent of the injuries caused during these impact rounds, impact rounds to live fire. It is only operations by impact rounds, are you certain that when you go up you only move through the their use was human rights compliant? thresholds if the alternative less forceful option is Mr Starmer: No, and we have carefully avoided not going to achieve the desired end. In general, saying that. We have said that their general use was when we were monitoring it, AEPs were not justified in the sense that the scale of violence was authorised to be used until water canon had been such that any threshold under the European used and on both the occasions that they were Convention or any domestic legislation clearly had discharged in large numbers in July and September been passed. As to the individual acts and the they were only authorised after there was clear injuries, we have not been in a position to look at evidence that petrol bombs or blast bombs were those. We do not have that capacity and in any either being used or about to be used. event there is a duty on the ombudsman to do exactly that and we would only be duplicating what she was doing. Only she will be able to say in each Q190 Baroness Stern: Youexplained to usthat in and every case whether it was justified, that riot situations, such as the ones we are talking about, particular firing, and what was the injury. She then impact rounds were used in an accurate and makes a report which goes to the Policing Board discriminating way against individual aggressors and we will then review our general findings which is what the Police Service of Northern Ireland against that. guidance requires. How can you be sure of that? Mr Starmer: We cannot be sure about that in respect Q188 Baroness Stern: Do youconsider that the of every incident, but we have looked at as much as Police Service of Northern Ireland procedures—the we possibly can. The key features are that there are general procedures that they operate—ensure that a large number of evidence-gatherers in operations more proportionate means of crowd control are such as the ones we monitored because it was used to the fullest extent possible before impact expected that there was going to be disorder. That rounds are deployed? means there is a camera running most of the time Mr Starmer: Yes, in everything that we have with those that are discharging baton rounds and by observed. As youhave seen from the report, over the reviewing that we can actually hear and see—the last two or three years we have gone to the long-term picture is literally someone with a baton gun—the planning meetings, the medium-term planning message. Each firer has with him or her a companion meetings and the briefing meetings before the oYcer who will be pointing out the target and you oYcers go out on the road and then we have watched can hear “man, blast bomb, three to the right”, you it for ourselves. The policies are good policies. They are getting a description of the target and that did have been reviewed and the police do stick to them not appear to us to be being staged. That is what was certainly in the instances where we have been observing. We are obviously alert to the criticism of: going on and for that reason the general impression well, the day that youare there they are boundto go we got from the video footage we saw is that it was through the procedures, and we have double- targeted. I do want to stress that they are general checked against records when we were not there to findings and there are a number of incidents which find out what has been going on on other occasions. are either not on video or that we have not seen for Most significantly the major disorder in September some other reason, but generally from what you when there were literally hundreds of petrol bombs could see there would appear to be the hallmarks of and live fire being thrown and fired at police, the identifying a target. speed with which decisions are having to be made and the number of them mean that to change the approach because Jane and I are there monitoring Q191 Chairman: Even given this huge increase in what is going on would be impossible. We have been numbers of use of AEPs in a particular three days in impressed with the decision-making when we have Sept when the police fired 249 and the army 140—a been monitoring. huge increase in numbers—you are still satisfied that Ms Gordon: The policies that the police have on the they were being used properly in accordance with the use of force on impact rounds and water canon, they guidelines and not for any general purpose? have obviously reviewed all of them. Some of them Mr Starmer: As far as we can be. I am sorry to keep were reviewed when the Human Rights Act was hedging like that, but so far as we can be. From what implemented by barristers in Northern Ireland. we saw on the day, on the screens that were Most of them adopt as an appendix to the policy the available, and from every bit of footage we have ACPO standards. For impact rounds and water reviewed, that is the situation. It is right to say that canon it is specifically referred to in those guidelines it is a huge escalation because obviously they had not and those are the guidelines that they then task been used at all for several years and to go from that oYcers with. to hundreds being used is remarkable. The level of violence was really shocking. There were hundreds Q189 Baroness Stern: Are there other, less lethal, of petrol bombs being thrown and images of gunmen forms of crowd control that could be used generally? getting ready to fire at police lines which were Mr Starmer: Yes. The gradation is essentially batons captured on camera and anybody viewing the video in the form of truncheon batons, and going up from footage would see there were numerous and that water canon, going up from water canon to serious attacks. 3358395004 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 43
6 March 2006 Mr Keir Starmer QC and Ms Jane Gordon
Q192 Baroness Stern: I have one final question. In you see the video footage is that very often people the past we have noted in this Committee that there are picking stuV upoV the ground to throw and the has been a high level of injury to children in firing mere fact that someone is hit in the head does not tell plastic bullets. Were you able to make any you in and of itself very much about whether the assessment of the number of children involved in the shot was fired properly or not. It is a real problem rioting this summer and the potential for them to be that we have struggled with and not been able to targeted or, more likely, unintentionally injured by come up with a satisfactory explanation as to impact rounds? whether that is evidence of them not being used Mr Starmer: We were discussing this earlier on. properly or whether that is just inevitable in that There are a number of components. The first is situation. Very often what happens is someone will whether AEPs should ever be used against children run out from the crowd with a missile in their hand, as the target, and then the question of whether there throw it and run away, so they are in and out very is an inevitable risk to children when they are used quickly and if they move at all whilst they are being against any other target because children are smaller shot at then it may well hit another part of their and all the rest of it. So far as identified targets are body. concerned, I do not think we saw any instances where the children were targeted that we can Q195 Mr Carswell: Do youknow how many of these remember, but I am not sure. The reason for that is hundreds fired found their mark and what happens if a child is anyone under 16, then it is true to say that if one of these hits you? certainly in Ardoyne a lot of the violence was coming Mr Starmer: One of the diYculties in Northern from relatively young children. You would get boys V Ireland in this particular context is the non- of 14 or 15 throwing a lot of stu , and although some reporting of the injuries by those that are hit for a of the individuals who got onto the roofs of shops variety of reasons, not least that some of them are and started throwing blast bombs were adult men, I V less than keen to identify themselves, and therefore am not sure if some of the other stu was not thrown we do not have a full picture of the injuries. I do not by younger men. It may be that the 14 or 15-year- think anybody actually does and there is a loss of olds who were throwing things were targeted. I information. In Ardoyne nobody came forward as cannot think of an example where we would be sure Y having any injury at all when clearly some of them about that.Ms Gordon: There is a di culty here must have done. because often the people who are throwing petrol bombs will be covered both with caps and scarves, so it is quite diYcult to work out the exact age group. Q196 Lord Judd: If I may press youon a point that youmade in response to a questionby the Chairman, who was drawing attention to the Q193 Chairman: How accurate are these things increase in useand asked youif youwere absolutely when they are fired? Can youget hit by accident? certain that they had been used always with care Mr Starmer: We are not the experts on that. From and that they were not becoming a general practice, what we can see they seemed reasonably accurate to which I think your words were along the lines but I do not know and obviously others would know “as far as we can be aware”. This is a very serious and that is an important question for them.Ms matter and with my own past ministerial experience Gordon: The records that we looked at for each one Y in Defence and other experience there is always a of these rounds that are fired the particular o cer danger that imperceptibly a culture begins to has to make a note and, as Mr Starmer was saying, change and that something that has been regarded they operate in pairs. We have reviewed all of these by responsible people in key positions as something records and they do note whether or not the target that can only be used in very specific circumstances was hit. In terms of their view there will be some that is used and then the point is stretched, and then it will record the target was hit and the particular part is stretched a bit more and before youknow where of the body and there will be others saying “target youare, youare in a situationin which there is a missed”. When people are moving and shifting in far greater readiness to do this. It is not either or; this situation there could be a variation there. these things have chemistry, if I may use that word about them. I just wondered whether you can really Q194 Chairman: Have youlooked at the records of convincingly reassure the Committee that the these 249 to find out whether they were hit and hit in vigilance and commitment is as strong, not only the right place? theoretically, but eVectively as it should be? Mr Starmer: No, not yet. The reason is that the Mr Starmer: The reason I said “as far as we know” ombudsman will be looking at that precisely when is that we carry out monitoring of all the police taking evidence from the oYcers to check the involved and we are only in Northern Ireland a set veracity of it and therefore we will do when that is number of days every month and things happen done. Generally on accuracy and injuries it is true to obviously when we are not there. If we know there say that certainly in the press there have been a is likely to be an issue we will make sure that we number of photographs of injuries to heads, to faces, are there and that is why we were there for these to eyes and to the top of the head with the suggestion particular situations in July and September, but we that they were either not accurate, or in fact they are are obviously not prepared to sign oV on anything not being used properly because you should not be when we have not reviewed any of the evidence. We aiming for the head. We have found that very have done a huge review for this report. We have diYcult to follow up because what you can see when not reviewed other uses of AEPs when we were not 3358395004 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 44 Joint Committee on Human Rights: Evidence
6 March 2006 Mr Keir Starmer QC and Ms Jane Gordon there. I completely understand the point that once reluctant were the senior oYcers to use AEPs that AEPs or this kind of equipment is used then there they were delaying the decision too long. At the might be a tendency for the standards to drop. I moment we think the threshold that is in the do not know. We will obviously keep a very close policies is being applied, but we have to watch that eye on that. They were used a number of times over that does not change over time. the summer. On the times that we were there the threshold was high and some police oYcers were anxious in respect of Ardoyne that the AEPs were Chairman: There is a division in the Lords. I am not used quickly enough. They took a huge number afraid we are going to have to call it a day and of injuries from bricks, rocks and things being conclude the meeting. Thank you for your thrown at them and they were concerned that so evidence. 3358395005 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 45
Wednesday 8 March 2006
Members present:
Mr Andrew Dismore, in the Chair
Bowness, L Plant of Highfield, L Campbell of Alloway, L Stern, B Judd, L Mary Creagh Dan Norris
Witnesses: Mr Shaun Woodward, a Member of the House of Commons, Parliamentary Under-Secretary of State, Northern Ireland OYce; Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland, Police Service of Northern Ireland (PSNI), examined.
Chairman: Good afternoon, everybody. This is the attendance today will be beneficial to the continuing session of evidence we are taking in our Committee. I also have with me Mark Sweeney, inquiry on UK compliance with the UN Head of the Rights and International Relations Convention Against Torture, UNCAT, and we Division, and Ken Lindsay, Head of the Policing have as witnesses today Shaun Woodward, the Reforms Division, if there are any technical Parliamentary Under-Secretary of State of the questions the Committee wants to address either on Northern Ireland OYce, who is a former member inquiries or AEP. Can I put on record as well our of this Committee, so I do not know if youare confidence at the Northern Ireland OYce in the poacher turned gamekeeper or what, but I am sure PSNI; they are truly one of the outstanding police youknow what to expect. Can we also welcome Sir forces in the world. In common with all police Hugh Orde, Chief Constable of the Police Service services, the PSNI are, on occasion, forced to deal of Northern Ireland, Peter Sheridan, Assistant with violent individuals in dangerous situations Chief Constable with responsibility for Derry, and who are endangering others around them, Duncan McCausland, Assistant Chief Constable including not only police oYcers, but the public. In with responsibility for Belfast. I think Lady Stern Northern Ireland specifically, this aggression may wants to make a declaration before we start. take the form of rioters using petrol bombs, blast bombs and other lethal weaponry against both Baroness Stern: Yes, I would just like to confirm police oYcers and other sides of the community. that my husband is a member of the Billy Wright The graphic examples of the rioting over the inquiry. summer of last year, especially Whiterock in Chairman: Perhaps we could start with a question September, are examples of the diYculties to Sir Hugh. In the past, the use of plastic bullets encountered by the Police Service in Northern has caused death and serious injury. ACPO and the Ireland. Let me just remind members of the Police Service of Northern Ireland guidance makes Committee that in that one event last summer 167 clear that AEPs are not suitable for use in crowd blast bombs and 117 bullets struck police vehicles, control. This summer, over 400 AEPs were fired by resulting in 93 injuries in one event, and 170 the police and by the Army. vehicles were also hijacked and 12 weapons recovered. The police responded with six live The Committee suspended from 4.13 pm to 4.21 rounds and 249 AEPs, the Army firing 140 of those. pm for a division in the House of Lords. I think everyone here should recognise that, however much better it has become, our police Q197 Chairman: I understand that before we get oYcers in Northern Ireland still continue to work into the questions, Minister, you and the Chief in highly unusual, diYcult and extremely stressful Constable would like to make opening statements, circumstances. Of course, even given that set of so perhaps I could ask you to do that. circumstances in that one incident, this would not Mr Woodward: Thank youvery muchindeed, justify any inappropriate action by the police. As Chairman. I very much welcome the opportunity youknow, even when the police find themselves to discuss the broad range of issues related to this. having to use impact rounds, a Police Ombudsman I understand that the Committee took evidence report must follow. In addition to this, I would like from the Minister of State for the Department for to remind the Committee that the Independent Constitutional AVairs on overall UK compliance Human Rights Adviser to the Policing Board has with the UN Convention Against Torture. As she reported that “the tactical and operational then said, the UK Government takes its obligations planning of public order situations over the under the UN Convention Against Torture very summer were both careful and considered”. seriously and I am sure I speak both for myself and Therefore, in that context, whatever people may the Chief Constable in saying that we both share understandably feel as a matter of instinct when that view. I also know that the Committee has faced with this situation, there has always been a expressed an interest in its previous hearings in strong feeling that the use of live rounds, which particular subjects arising from the UN would be used in other European or US Convention Against Torture. I hope our joint jurisdictions, would be a disproportionate, and 3358395005 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 46 Joint Committee on Human Rights: Evidence
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland more potentially lethal, response. It is also face. Stringent oversight and accountability acknowledged, however, that failure to act would mechanisms govern the use of AEPs in Northern oVer massive risks not only to the lives of police Ireland. My preference would be not to use them, oYcers, but to other members of the public and, in and in fact I hoped to be the first Chief Constable these circumstances, less lethal technologies oVer never to have used AEPs in Northern Ireland, but an alternative whereby the aggressor may be sadly they had to be used this year and before that temporarily incapacitated without sustaining a they had not been used since September 2002. It is fatality or even long-term injury. Whilst there is no a less lethal option to live rounds and it has to be solution that oVers a pain-free, 100 per cent safe available to my oYcers in circumstances where they means of incapacitation, we are committed, and consider, subject to authority, that their use is continue to be committed, to improving the safety absolutely necessary in order to reduce risks which of the less lethal system available to the police oYcers find themselves in, as do members of the across the UK and the Army in Northern Ireland community. The risk that I talk about is not just in line with Articles 2 and 3 of the UN Basic to my oYcers, but it is to the people we are charged Principles on the Use of Force and Firearms. This with protecting and that was a major factor in the involves balancing the human rights of the disorder youhave already heard some evidence on. aggressor with the right to life and the right to be The Minister has mentioned the events of protected from injury that must be aVorded to both Whiterock Parade, so I will not repeat them, but, police oYcers and the community they serve. We just by way of description, the blast bombs he are leading international work on this through the referred to are most easily described as hand International Law Enforcement Forum. The grenades. These are lethal weapons and it is worth current impact round, the attenuating energy remembering that the last police oYcer killed in projectile, was introduced only last year on 21 June Northern Ireland was killed in a public order across the UK. It is not used as a means of situation at Drumcree by a blast bomb thrown by indiscriminate crowd control, but against specific a Loyalist rioter, and Frank O’Riley was his name. individual aggressors. Thank you. The day of the Whiterock Parade, that was the day we policed a decision of the Parades Commission. Q198Chairman: Chief Constable? I was there in the control room the whole day and Chief Constable Sir Hugh Orde: Thank you, Mr McCausland was the gold commander. We Chairman, and thank youalso for inviting me to employed a graduated response; we negotiated and give evidence. On receiving your letter, I did think we blocked roads and prevented Protestants from it was absolutely vital that I attended personally entering Nationalist areas in direct breach of the Y with my two Assistant Chief Constables to give Parades Commission determination. My o cers evidence and having read the evidence youhave faced the marchers and, in response, were shot at, already heard, some of that suggesting that we had stones, petrol bombs and blast bombs thrown V employ diVerent tactics in diVerent parts of at them. On 12 July, we faced a di erent parade Northern Ireland, which indeed was the nub of and again upheld the Parades Commission your letter, when we respond to public disorder. determination. On that occasion, it allowed That is very true, we do, depending on the level and Protestants to march through a Catholic area and, Y intensity, so the evidence before youin that sense on that occasion, my o cers again faced stones, was correct. A range of tactics is available to all my petrol bombs and blast bombs, this time thrown by commanders, AEPs being only one, and I note in members of the Republican community rather than much of the evidence you have heard already the Loyalist. The point, I suppose, is that my reference being made to plastic bullets. These are oYcers continually find themselves in the middle of fundamentally diVerent and in fact here is one I these community issues. On both these occasions, made earlier. This is a plastic bullet which AEPs were fired. On these occasions, they diVered disappeared in 1999. The impact round, which is substantially from the disorder my commander in the product of initial research, the AEP, I have also Derry faced during the marching season this year, brought here, the original round, and these are just and Peter Sheridan is here if youneed to hear about the pieces which are discharged which I am happy that. In Derry during the summer months, July and to circulate, and the modern round which was August, there was trouble with three parades only, introduced, as the Minister said, only recently. It is with in total 43 petrol bombs, compared to the the situation which dictates what tactics are used. thousands in Belfast, and only three oYcers It is important to say and underline, as the Minister injured. They were fundamentally diVerent events. has said, that what we do is in response to public In my mind, how we respond to public disorder has disorder and it must be legal, necessary, to be particular to each and every event. It is very proportionate and fully compliant with human dangerous to make comparisons or draw rights legislation. All my commanders responsible conclusions about deploying one tactic at one event for these events receive training, as do my tactical with a diVerent tactic at a diVerent event. AEPs support group oYcers who deploy these particular were fired in response to three specific periods of weapons in public order situations. We also train serious public rioting during 2005, being 12 July, 4 with the Army because of course, sadly, we still, on August and the period of 10 to 12 September. rare occasions, have to rely on military support in Before that, as I said, baton rounds had not been the extreme violence which we do, on occasions, used since 2002 and the reason is quite simple: that 3358395005 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 47
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland on no occasion between 2002 and the ones that I Minister has brought with him, so, if youwish to have just mentioned did we feel, did my ask any further questions, we can ask them to commanders feel, that the situation in terms of riots answer any specific questions on the baton rounds. was suYciently serious for that particular response to be used. To finish, Chairman, I attend most of the briefings for these events and I was there for Q203 Chairman: We will pass these round so that the major briefing for the major parade on 12 July we can have a feel of them. Mr Woodward, having when my gold commander briefed all bronze listened to your opening statement and, as I think commanders, all the inspectors and all the chief we have just heard, there were some 400 AEPs fired inspectors. One thing was diVerent, I think, from over the summer, how can you be confident that anything youwouldsee anywhere else in the United these AEPs do not cause inhuman and degrading Kingdom in any Police Service: that the front row treatment contrary to the UN Convention, based of that briefing room was not my oYcers, but it was on the previous findings of the UN? the human rights observers from the Policing Mr Woodward: I think, Mr Chairman, we have to Board and members of the Police Ombudsman for again remind ourselves of why we have the AEP. Northern Ireland not only to hear what we did, but We have it as a less lethal alternative to those that actually they had speaking parts to brief the oYcers are actually employed elsewhere in the world and themselves, and I hope that underpins just how this has been specifically developed in Northern seriously we take these issues. Ireland to handle situations in Northern Ireland, which, as I think both myself and the Chief Constable were trying to make clear in our opening Q199 Chairman: Thank youvery muchand thank statements, is a highly unusual set of circumstances, youfor bringing along the exhibits. For the written but which include not only the use of petrol bombs, record, perhaps youcouldbriefly describe each one but blast bombs. As the Chief Constable said, the in the right order and how they have developed blast bomb is eVectively a grenade and a very, very over the years. nasty grenade at that. It is not only a grenade that Chief Constable Sir Hugh Orde: I will hand over to eVectively may just be targeted at the police, my expert, Mr McCausland, to deal with that. although regrettably, as the Chief Constable said, Assistant Chief Constable McCausland: The one the last police oYcer to die was as a result of a blast youare holding now, Chairman, is defined as a bomb, but sometimes these rather crude bits of plastic baton round and it replaced what would technology do not go oV. When I was in Northern have been used by the Army in terms of the rubber Ireland last summer, as Security Minister, bullet that members of the Committee may witnessing, it has to be said, at a distance, but remember in their knowledge. This was then witnessing nonetheless the events of 12 July, one of succeeded— the things I observed was blast bombs being used, but they did not always go oV and those who threw Q200 Chairman: Can youdescribe what it looks them or planted them then moved on. Then you like for the written record, please. saw actually quite relatively innocent members of Assistant Chief Constable McCausland: It is a long, the public, who just, as it were, got involved in this, cylindrical tube of about four or five inches long getting quite near to these things and you realised and is basically solid plastic. This one, the L21A, that they were actually in danger of severe injury was developed as a result of the Patten Report. or losing their lives. Now, this is clearly a highly unusual set of circumstances and the police have Q201 Chairman: This is the purple one? got to control those, and I am sure the Chief Assistant Chief Constable McCausland: This is the Constable can go into the specifics of that. Again, purple one, yes. It is slightly smaller. Again it is a in looking at this, I think we have got to cylindrical tube. It has less solidness in terms of understand why you do need in Northern Ireland how it is made up, but it is as eVective as the less lethal weaponry, and a continuous original one that we talked about a few moments commitment to developing that less lethal ago. As a result of the work from the Patten weaponry is very much part of ensuring that we are Report, they continued to develop, with the not only HR-compliant, but actually go beyond Committee the Minister referred to, in relation to that. The old weaponry, which the Chief Constable trying to find an alternative to the baton round and ACC McCausland just described, we have to and, as a result of that, the baton round you are remember that those early versions were holding in your hand, the AEP you are holding— responsible for 17 deaths, nine of which were people under the age of 18. There has not been a Q202 Chairman: This is the grey one? death from this new technology and I think again Assistant Chief Constable McCausland: Yes, the that is a very important point to make to the grey one. It has, as youwill notice, Chairman, a Committee in saying this. The AEP was introduced soft nose which will give on impact and last year, and again many of the statements we have significantly give on impact which should reduce seen which the Committee has looked at over the injuries when fired. You will see, if members have weeks of its investigation have actually referred to a chance to examine it, that youcan press in the the old technology which somewhat confuses nose on the AEP, whereas youcannot on the plastic rounds, baton rounds and impact rounds. previous two rounds. There are experts the The AEP is an impact round which came into 3358395005 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 48 Joint Committee on Human Rights: Evidence
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland service last year and it is a completely diVerent type Assistant Chief Constable McCausland: As gold of technology and, as I see members of the commander, either myself or Peter Sheridan would Committee are looking at this, I might just remind in the first instance assess the intelligence and the youthat the critical thing to realise here, if you background to any event or any up-and-coming compare it with the yellow, old one, is that this is event with the district commander and with the absolutely solid, but, if you actually look at this, senior oYcer in charge of public order units, asking the whole top on impact collapses. It is radically for their views as to whether we should issue the diVerent and the impact of that on somebody with AEPs, to be carried in the vehicles, that is, carried, very strict controls as to where it can be targeted, as determined, in locked boxes in the vehicles as a below the ribcage, below the belt buckle, again is tactical option. We also consider, and are given, extremely important in protecting people’s lives, very lengthy, tactical advice from public order even of those individuals who may be committing experts as to what the situation may be. Once I huge acts of aggression not only at the police and have authorised the use or the carriage in the the Army, but other members of the public. What vehicles, there is then appointed a silver goes hand in hand with that to make sure that it commander, who is usually the rank of is HR-compliant is the training of the oYcers, the superintendent, and he or she has the authority to specific oYcers, and I think I am right in saying it then authorise, if a public order situation develops, is 279 oYcers who currently have the ability to use the ability to deploy, and that is taking them out these, specially trained, and again remembering of the boxes and bringing them to the front line of that, before any of these can be fired, authority has a public order event. At that stage the bronze to be given for that and, in relation to the police, commander, who is usually a chief inspector and every time one of these is fired, it has to be then sometimes a superintendent if it is a serious public accounted for and then the Police Ombudsman is order situation, has then to describe to the silver obliged to conduct a report into that. Therefore, I commander the situation as it is developing to ask for permission to use those weapons against would actually say that, as far as we can in specific, identified targets. At the same time, and I regrettably being forced to use this technology, we can provide, with the Chief Constable’s permission, are as HR-compliant as we possibly can be and, if if youwish, video evidence of the type of events we we can go beyond that, we will do so. are describing to you, which may be of benefit to you, we would then give authority to open fire, so there are three levels of authority given and they Q204 Chairman: Perhaps I can ask Sir Hugh in that are very strictly controlled. As soon as the weapon context then, I think it is generally accepted that is used, we review, and continue to review, the use these AEPs are not suitable for crowd control, that of that weapon actually being brought out and that is not their intention, and I presume that, as deployed in a public order situation. that is the guidance, everybody accepts that. Perhaps I can ask youhow youcan be surein a Q205 Chairman: Youmentioned the video. One of riot that they will be used in a way which is the recommendations, as I understand it, of the accurate and discriminating, as the guidance Independent Human Rights Adviser was that the requires? videos of the demonstrations should be published Chief Constable Sir Hugh Orde: Well, let me be in a general format. Is that possible? clear on how they are used. They are not used Assistant Chief Constable McCausland: It is indiscriminately at all. It is a precise weapon that is possible, Chairman, and very shortly, in fact the used to target those who are a direct and immediate next day, after Whiterock, the Chief Constable and threat to oYcers or members of the community myself hosted a live press conference where we whom my oYcers are charged with protecting, so showed the press significant footage of what had the oYcers are, as the Minister said, specially gone on and what had happened. However, you trained and they have to train at least twice a year must also remember that that is evidence and it is to maintain their qualification. They are deployed evidence of people committing criminal oVences under strict supervision, and I will ask Duncan and we have to be very careful in terms of not McCausland to explain the authority levels it destroying the use of that evidence in a court requires to actually open fire with one of these, but hearing. it is not a weapon we use lightly. It is part of a wide range of equipment we use, be it ordinary, standard police tactics around oYcers in riot gear with Q206 Chairman: But you will be able to publish it shields right through to the six water cannon we in full after the trial? have, which is unique in the United Kingdom, but Assistant Chief Constable McCausland: Yes. again less lethal, which can be used and were used to good eVect in Northern Ireland until the riots Q207 Chairman: Is there any prospect of being able escalated to such a stage that they were simply not to publish it with people’s faces obscured? able to cope which was when we reverted to AEPs. Assistant Chief Constable McCausland: We are In terms of the authority levels, again Duncan you looking at that in terms of the recommendations might touch on how authority is given to use these that Mr Starmer made. That would be one that we weapons. would be potentially taking up. 3358395005 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 49
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland
Q208Chairman: Perhaps I could go on to ask you Conduct which talks about the use of firearms, and about the position of children who are often the baton gun that we use is a firearm, where every involved in the demonstrations. In the past, there eVort should be made to exclude the use of firearms has been quite a high rate of injury to children especially against children, and that is made clear caused by possibly the earlier versions. When you to our own oYcers. Our own training recognises deploy plastic bullets, are there particular that children may be part of the crowd, so in instructions about children being targeted or not training we train oYcers that children may be targeted and what prospect or risk is there that placed in danger should an AEP miss its intended children may be hit accidentally? target and again our own ACPO guidelines have Chief Constable Sir Hugh Orde: There are no separately talked about children and the need to be instructions about targeting children anywhere. careful with them. The diYculty is from a practical The targets are identified by the oYcers as the point of view in that, as police oYcers, when you people who are providing an immediate and are faced with a very hostile and violent crowd, it definite risk to them or the people they are can be very diYcult to distinguish who is a child, protecting. Sadly, again Northern Ireland is and particularly when people are wearing masks it somewhat unique. Having spent substantial time can be very diYcult to make that distinction running support units in London, I have never seen between them, but oYcers are certainly well trained the levels of violence in London that I have seen to be alive to that possibility and we seek to avoid since I have been Chief Constable in Northern that at all potential opportunities. Ireland. It is a fundamentally diVerent level and diVerent scale and the sad reality is that young Q209 Chairman: What is the chance of accidental people are frequently at the front of these riots. It injury from AEPs, either to children or perhaps is partly used as a tactic by those organising the more generally as well? riots and, sadly, it is part of the Northern Ireland Assistant Chief Constable Sheridan: First of all, as culture that young people do, as it is referred to the Chief Constable has said, in terms of training, sometimes, recreational riot, but they do riot a lot. oYcers are trained twice a year and they have to The other thing to underline is that we are not reach a high standard in terms of their own training talking about people throwing stones, we are not and being able to carry it. If, during their training, talking about people throwing bricks or boulders, they hit too high on the target, then they fail their and we do not deploy AEPs against people training. If they are deemed to have fired and throwing rocks and things. The first tactic is to missed, too high, they will fail their training. From retreat, to get out of the way, if we possibly can. the very beginning we make that clear to them. It is when it becomes lethal for us, be it live rounds, OYcers then, as part of their training, are made blast bombs or petrol bombs, that these things are aware that, if they miss in a hostile situation, the considered. Therefore, in terms of whether young potential then for hitting somebody who is in the people are, on occasions, hit by impact rounds, yes, crowd who may be a child or a young person is they are, but it is because they are in possession of very obvious. I am not sure whether the Committee a blast bomb or a firearm or because they are in know this, but, when you aim this weapon at possession of a petrol bomb and they are about to somebody in the crowd, an individual aggressor, attack oYcers or members of the crowd that we there is actually a light that shines upon them, so have to make that decision. There are clear you can pick out the individual and it tells you guidelines, and I will ask Peter to touch on that, where youare hitting them. People can move very clear instructions to remind oYcers that we need quickly and so on, so there is always the potential additional considerations if the target they see for that and particularly in hostile and violent looks young, but sadly it is not so much the person, situations. but the potential that person has which puts our Y Y o cers in such a very, very di cult position. It is, Q210 Chairman: Can I turn to an issue the Chief I think, important to stress that the AEP is a fairly Constable mentioned in his introductory remarks accurate weapon, it is not an indiscriminate and that is the diVerence in use between Belfast and weapon, so they can be careful and the guidelines Derry in terms of the numbers that were fired over about where they shoot people are very clear. the summer, where it was a significantly higher Where they have to aim is the lower body, certainly number in Belfast compared to Derry. Perhaps, Sir not the upper body, and that is enshrined in the Hugh, or your oYcers could describe the reasons training as well. Perhaps Peter can touch briefly on for that. the specific instructions around children. Chief Constable Sir Hugh Orde: Yes, I will ask my Assistant Chief Constable Sheridan: First of all, two oYcers who have come to deal specifically with 1989 was the last death of a child thankfully in the that, but in broad terms, as I said in my opening, Province and, with the improved tactics and every event, regardless of where it is, is dealt with technology for training, we hope that that will proportionately and appropriately to the remain the case with the introduction of a safer circumstances as they unfold. Northern Ireland is round, mostly safer for everyone when it is fired a very unpredictable place, but it would be right to and whoever it strikes. At our briefings, when we say, certainly in this marching season, that we had are briefing oYcers and training oYcers, they are a number of major objectives. One was a peaceful made aware of Article 3 of the UN Code of marching season and, as we had 3,029 marches and 3358395005 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 50 Joint Committee on Human Rights: Evidence
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland we only had disorder in a handful, we largely to Londonderry required two police oYcers, one at achieved that objective. I think again the context is the front and one at the back. The fact that both important with over 3,000 marches a year in communities decided that they did not want to Northern Ireland. The second was to minimise the mark the funeral of George Best with any sort of use of military support because we are a civilian major disruption had a significant impact on de- police service. In Peter’s area, I think we achieved escalating the entire tension in the community. it without any military support. In Drumcree, for Belfast continues to try to strive to reach a situation example, there were no soldiers deployed in support where compromise can be achieved and it is only of the policing there this year at all, so again it is through compromise that in eVect a very small back to letting us do our job and letting the military number of parades the Chief Constable is referring get on with what they are best at also. The third to, we estimate no more than 20 violent parades one was to use the minimum amount of force we throughout the entire parading season, caused any possibly could to facilitate the Parade sort of major controversy where that could be Commission’s determinations which are enshrined resolved. I have to put in context the situations. If in law and in fact are the law and our task is to youtake the parade on 12 July,we su Vered three police those determinations. That led to some very hours of very serious rioting where blast bombs diVerent events. I think strategically, and then I will were thrown and 100 police oYcers were injured. hand over to Peter and Duncan, it would be right It was only when the blast bombs were thrown and to say that in Derry there is a very diVerent we had used every means available to us, water approach to the marching season than there is in cannon, manoeuvring, trying to get community Belfast by the organisers, and I will ask Peter to representatives to use their influence to stop the cover Derry first and then Duncan to follow. rioting to allow us to come out in the event and to Assistant Chief Constable Sheridan: I should say, calm the situation, that we turned to using AEPs. first of all, that I have had 26 years’ policing service We then moved to 10 September, again enforcing in Derry and there have been some of the most the Parades Commission’s determination and, violent rioting situations one can imagine. remember, keeping one side of the community out Thankfully, Derry has moved on from that and, as of the other community’s area, and we were in V one of your previous witnesses quite rightly pointed e ect in a situation where, as the Minister and out, in terms of public engagement of the police, it Chief Constable have described, we came under has avoided some of the violent situations that have very, very serious attack. That amounted to 12 happened. For me, I suppose what I believe has hours of extensive rioting across Belfast on the first happened is that for the first time people in the day, eight hours on the second day and six hours Province, particularly in Derry, are not just on the third day. As a result of that, we fired the thinking about their own rights and freedoms, but 249 AEPs, in conjunction with an extensive use of they are starting to look at the rights and freedoms the water cannon throughout the city. I think that V of others and the people whom they would see in puts into context the di erence. As Peter rightly opposition, so they are starting to look at their says, ten or 15 years ago, in Derry they would have rights and freedoms. As a result of that, people are fired many, many more AEPs in the public order starting to compromise on how parades are situations they had to deal with. progressed through the city. Because of that then, the response from the police has to be less violent Q211 Chairman: So what youare saying is that the because there is starting to come now an rules of the game are the same for both cities, but understanding that, in human rights terms, it is not the situations you were facing were very diVerent just your own rights and freedoms, but the rights and that is partly because of the diVerence of and freedoms of others that are actually even more approach by people living in Derry to a more important. I have found that a lot of people in the reasonable point of view, whereas that is not the city who would previously have been probably position in Belfast. deeply involved in that have started to think in that Chief Constable Sir Hugh Orde: I think that is a way and I think that has been the first step to very fair summary. The bottom line is that we have progression. to respond to the events as they unfold and we have Assistant Chief Constable McCausland: In relation a range of options available to us. The events in to Belfast, I think the key to the situation is that Derry did not unfold in any way where any district there has been a lack of compromise. There has commander or gold commander felt it appropriate been a great deal and amount of negotiation going to even ask for the deployment of AEPs. I on between the communities in an attempt to reach witnessed, as did the Minister, the events on 12 July a settlement, but when it comes down to the line and 10 September and there is no doubt in my mind and the Parades Commission’s determination is that, had we not deployed the tactics we deployed, made, when one side seems to feel they win and the we would have lost an oYcer or we would have lost other side seems to feel they lose, my oYcers find a member of the community. It is important, I themselves stuck in the middle. I will give you an think, to make the point that on 10 September the example. The parade on 12 July last year required march was completely illegal, so we faced a 600 police oYcers and 1,000 soldiers to manoeuvre situation where a march was determined to get into that parade safely past. The same parade coming the Springfield Road and attack the Nationalist down on 3 December for the apprentice boys going area and I think what we proved beyond doubt is 3358395005 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 51
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland that we were more than capable of defending that obtainable about the old plastic rounds. In addition community from that concerted attack over a to that, we nonetheless keep all this under review substantial period of time and not one rioter got and we are working with the Defence Scientific into the Springfield Road. To achieve that, we had Advisory Council Sub-Committee on the medical to deploy oYcers under live fire, but we did it. implications of this. They do have meetings with hospital doctors to discuss any emerging patterns of injury that might be occurring from the firing of Q212 Chairman: I do not think it is very clear how these weapons and a paper is now being prepared many people were injured by AEPs. Can more be V for the medical press on the pattern of injury from done to provide information about the e ect of the AEP system. We will continue to work on that AEPs so that there can be a more informed because it is absolutely in our interests in Northern assessment of their proportionality? Ireland that we actually have public confidence Mr Woodward: I think again, Chairman, there is about our policing and, if we look back historically quite a lot of misleading information which flows at the lack of confidence in policing and the V around about AEPs and their e ect and injuries. confidence that now exists by the public across both Again, part of that is because the technology is communities post-Patten in the Police Service of changing so fast that people have a perception that Northern Ireland, I think there is evidence to we might still be talking about the yellow object as support the fact that the police act proportionately opposed to the purple object or indeed now the and with a view to saving life and that is a very V grey object which is very, very di erent and is diVerent picture, whether it is true or untrue, V developed very di erently. Nonetheless, it is my certainly from the perception that existed pre- intention, and certainly it has been the intention of Patten by certainly some sections in the Y the Northern Ireland O ce under recent ministers, community. to be as open as possible about this. I know that some people have given the suggestion that actually Q213 Chairman: This may be a naı¨ve question, but there is not really any information around about would it be possible to introduce a third party the number of impact rounds fired or those who reporting system for injuries in the future? may have been hurt and there are two things I Mr Woodward: Well, there is a third party would like to say. The first is that in relation to the reporting system of course in that, as soon as an firing of those impact rounds last summer, in fact impact round is fired, the Police Ombudsman is the Independent Human Rights Adviser made the immediately activated. information public at the end of September about the number of rounds that were actually fired, so it is totally misleading if the Committee has been Q214 Chairman: I mean by the person receiving it. led to believe that that information is not even in Mr Woodward: Well, again that person would have the public domain. It has been in the public domain to come forward, would they not? now for nearly six months and readily available by the Independent Adviser. Secondly, in relation to Q215 Chairman: But a third party reporting system injuries, I think it might just be rather sensible to reporting to somebody else who could then report state a point of commonsense really, which is that it on to protect them. if youhave been involved in rioting, if youhave Mr Woodward: Well, the third party reporting actually been throwing blast bombs and petrol system at the moment is that, if one of the Chief bombs which are lethal weapons and if youhave Constable’s oYcers fires an impact round, it been hurt by an impact round, there is a problem automatically triggers the Police Ombudsman. about going to hospital and actually saying, “By However, in relation to the person who might have the way, I was throwing a bomb around”. People been injured, the problem you have got here is that do not tend to report, when they go to hospital, you do require the person who has been injured to quite why they may have got some injury to their come forward. leg because obviously they would then be arrested if they actually admitted the fact that they had tried Q216 Chairman: But this is the point I am making. to kill a policeman. Therefore, I think one has got The third party reporting system, for example, in to again apply a bit of commonsense here as to why relation to race hate crimes in London, means that we may not get quite so many easily available somebody who is fearful of victimisation can report figures of the number of people who might have to somebody else. been injured. SuYce to say that, under the old Mr Woodward: Forgive me, but that is about being technology, we do know that up until 1989 there the victim of a race hate crime. This is actually were 17 deaths, we do know that there were nine about somebody who has thrown a bomb, risked deaths of children under 18, and I have absolutely somebody’s life, whether it is a police oYcer’s or no doubt whatsoever that if the firing of these another member of the community’s. The police are impact rounds, even given all the work we have forced in that situation, having got authority to use done on it and all the medical evidence we have on the weapon, and it still does require them, unlike it, if they had resulted in very serious injury or victims of a race hate crime whom we are death, everybody in this room would know about encouraging, to come forward. We would like it if it. The fact of the matter is that they have not and anybody who is involved with throwing a blast this does have to be compared with the facts bomb came forward, and may I say it through the 3358395005 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 52 Joint Committee on Human Rights: Evidence
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland
Committee now, anybody last summer who threw doctors is again important because it may be that a blast bomb, kindly come forward and we will we can garner information about this. Our belief is evaluate whether or not you were the victim of an that this is considerably safer. injury. We have not got a problem with that. I think the problem would be of course that those individuals who threw the blast bombs will Q218Chairman: This being the AEP? recognise that, in coming forward, they will stand Mr Woodward: This being the grey AEP a chance of being charged and prosecuted. As far introduced last year, but again, and the Chief as we are concerned, the more evidence we can gain Constable will speak for himself on this, I believe on AEP, the better, but I do think again it is that our joint approach to this is not just, as it were, important to put the context here about the that we should even stay complacent now that we aggressive actions of an individual whose rights I have developed the AEP, but there are other respect, we respect in the Northern Ireland OYce, technologies to be looked at. We are currently and I know the Police Service in Northern Ireland developing something called the ‘discriminating bend over backwards to respect, but I do think we irritant projectile’ and that is actually about firing V actually have to look in a kind of sensible way at an amount of small CS powder which e ectively the context in which this takes place and the eVorts hits a part of the body and incapacitates the we are making through the Police Ombudsman to individual. A lot of work is going into developing ensure that our actions are proportionate and that at the moment, but undoubtedly it would be appropriate. another alternative and, if we find it to be safer than this, it will be another weapon that will be available to the police to be able to use in controlling situations. Again though may I just say Q217 Mary Creagh: I just wondered if, for the one thing about this. This is sometimes wrongly benefit of the Committee, youcoulddescribe the seen as being crowd control technology. It is not in nature of the injuries that are caused by the AEP any shape or form technology to control a crowd. and how they diVer from those caused by other Crowds can be controlled by a range of methods rubber and plastic bullets that you have brought and in extremis water cannon can be used. It is with you. In a sort of follow-up perhaps to the when a situation develops into serious public Chairman’s question, surely if somebody went to disorder in which lives are at stake, it is not about hospital with a large bruise or a broken bone controlling a crowd, it is about serious rioting and caused by one of these projectiles, would the doctor serious public disorder, then you need treating them not be bound by the rules of patient discriminating weapons. These weapons under no confidentiality? Also, if there are 300 of these circumstances are regarded as indiscriminate; they bullets that are fired, would we not be likely to see discriminate. What we will strive to do is not only an increase in A&E admissions in certain local to collect information as we can have it about the hospitals around the time that these things eVect of this on individuals, but we will continue happened and could you not do it that way to try to strive to find more eVective ways of being and gauge, firstly, whether people are going to discriminating and being less lethal. In relation to hospital and, secondly, the nature of the injuries the first question, I think the Chief Constable or they are presenting at those hospitals? one of his colleagues would be better able to Mr Woodward: I will perhaps answer the second answer that. part of that and I think the Chief Constable’s Chief Constable Sir Hugh Orde: Medical evaluation colleagues might be more appropriate to answer the of the latest round, the AEP, concludes that the risk first part of the question. The answer is that of of serious or life-threatening injury to the head, course the rules of medical confidentiality apply which is the part of the body which is the most and you would expect them to apply, but, just as vulnerable from the AEP, is less than with the in the same way we are able to gather evidence brown one, the LP21, and no one was killed with about self-harm or deaths in custody because at the one of these either, so it is not seen as a lethal end of the day it comes through the system, one weapon and they describe the risk of a serious or way or another youdo get a sense for whether or fatal injury from one of these as already low. The not a problem may be emerging around something bottom line is that it is a nasty, round bruise that like that. At the moment it is partly anecdotal youare left with. These are not designed to because this is such a new piece of technology, but incapacitate for a long period of time and, in the suggestion we have got is undoubtedly that this essence, it is like being winded in that the person is considerably less lethal than its predecessors and tends to fall down and lose interest in throwing I think, as I cited earlier on, the statistics in relation anything until they recover, so that is what it is seen to the numbers of deaths before 1989 are proof that to do. It is a heavy bruise, a large, red circle where the earlier, yellow version of this was extremely the impact has gone in. dense and caused huge harm, whereas the soft- headed impact of this would suggest it is doing considerably less harm. Having said that, I think Q219 Mary Creagh: Have youmade any enquiries that is why the importance of the work that is being of hospitals about whether people are presenting done by the Defence Department in working with these nasty, round bruises? 3358395005 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 53
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland
Assistant Chief Constable Sheridan: We would Chief Constable Sir Hugh Orde: Yes, there are some automatically go to the hospital if we reckoned on diVerences. First of all, can I be 100 per cent clear that, but we have to be aware of patient that policing in Northern Ireland is led by the confidentiality and the police know that people are Police Service of Northern Ireland and the military in a position where doctors and nurses are trying provide support. They do no policing whatsoever to do their job in terms of allowing people to be unless it is at our request and they work very closely treated, first of all. It would also be fair to say that with us and are vital to us in the summer months, people youdo hit with one of these AEP or impact but my principle is that success for me is that rounds, they are up and away and sometimes they policing is done by police oYcers, not by the do not even fall. Sometimes yousee them giving military. First of all, we try not to use them at all, themselves a shake and moving on, so it is not which negates any of this debate because they are something that puts them down right away. Of not there and, as I said, in 80 per cent of the course a lot depends on the distance, what sort of territory, the rural area of Northern Ireland, last clothing people are wearing, a whole range of year the military were not used in these situations, things, where it hits them, whether in the centre or so the issue simply does not arise in the first place. on the side, whether it has hit them on the side of There is another diVerence. Whilst if I need military the leg, and youdo see people runningaway as if support—and I will ask Mr McCausland to cover something has just given them a kick. this in a bit more detail in a moment—they do as Assistant Chief Constable McCausland: In major we tell them. We ask them to carry out a certain public order events, Chairman, we also have tactic or a certain activity to defend a street or medical assistants standing by so that, if someone whatever. They are under their own line command, is hit and arrested, we can immediately administer however, so once we commit them to that, then medical assistance to them in relation to anyone their own oYcers are responsible for the safety of who has been struck with one of these rounds. those soldiers and indeed how they deploy themselves. I have to say—and again we are happy Q220 Lord Judd: I would like to ask the Chief to release the material—I saw soldiers come under Constable a question first of all and then move on some of the most concerted and violent attacks I to the Minister. As I understand it, last year the have ever seen, and they responded with nothing police and the Army agreed a revised Military more than shields. They lost a huge amount of Support Strategy which sets out, on the equipment retreating rather than engaging. They understanding of police primacy, a joint protocol behaved with the utmost professionalism, in my for the conduct of police and military operations. judgment. The diVerences are because the Army It seems that the stated aim of the strategy is to have standard operating procedures across the ensure that the police operations with military world and we do have diYculty in trying to support are conducted in a way that is compatible persuade them to bespoke their instructions so that with police obligations on human rights. That is they are diVerent for Northern Ireland, bearing in good news. However, despite that agreement, mind that their soldiers operate in theatres across concerns have been expressed to us in the course of the world and so that does explain to some extent this inquiry that there are still discrepancies, and the diVerence in tactics. That does not mean, for perhaps I can just give a couple of examples. For example, that anyone fires an AEP at a range of example, there is a discrepancy concerning the part one metre. I am not sure my ACCs can give any of the body at which the AEP may be aimed. Police evidence of any situation in that regard whatsoever; guidance, as we have been told, states that AEPs it does not happen. In fact, the only place youmay should be aimed at the belt buckle, although I think find it happening would be in England and Wales I heard yousay below the belt buckle. when they are used in siege situations in confined Chief Constable Sir Hugh Orde: It is the belt buckle. spaces, which we tend not to use, which is of course another use for AEPs. If I can be absolutely clear V Q221 Lord Judd: The Army guidelines state that on primacy. On the minor di erence around belt Y the AEPs should be fired below the ribcage. Whilst buckles and rib cage, the reason our o cers are police guidance accepts that AEPs are not suitable instructed to fire at the belt buckle is because that for use in riot control, Army guidance considers means they will hit below the rib cage. Whilst the AEPs to be “public order control equipment”. The Army instructions are slightly diVerently worded, I British Irish Rights Watch, in their evidence to us, think the outcome is the same. I do not know if raised concerns that both sets of guidance permit Duncan can say a little more. AEPs to be fired from a range of one metre, Assistant Chief Constable McCausland: If I can whereas the guidance on the previous form of help the Committee, these are the ACPO guidelines plastic bullet permitted a minimum range of 20 and it says as follows: “Baton rounds should be yards, and I quite take your point that there is a aimed at the belt buckle area so that that they strike considerable diVerence in the quality of the missile. directly the lower part of the subject’s body, ie The question I would like to put to the Chief below the rib cage.” That is the police and then the Constable is: have there been any real discussions Army says “below the rib cage”, so in eVect with the Army about harmonising the guidance although it is slightly diVerent, it is one and the provided to the police and the Army on the use same to that extent. If the Chief Constable wants of AEPs? me to address specifically the Army, in Belfast and 3358395005 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 54 Joint Committee on Human Rights: Evidence
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland in Derry in the Rural Region, we have a have moved on and how we have come on in terms memorandum of understanding which, in fact, a of policing in the round in general. It is very human rights adviser went through after 2004 to unusual now to see the military deployed anywhere, ensure that we have tightened and looked at the let alone in terms of public disorder. I think the fact issue of the deployment of the military, and in that last year we managed to police all of the Rural principle it very simply states this: we tell the Region without the military in the marching season military what we want them to do in support of the was a huge steep forward in Northern Ireland, and police. We do not tell them how to do it because our intention is to further minimise the use of they are a diVerent organisation and have slightly military, but in those limited circumstances where diVerent tactics to us, but they then come back and they are deployed, I have confidence that our tell us how they will do the thing, and we agree in system is good and it is fit for purpose. terms of the eVect we are trying to achieve in terms Assistant Chief Constable McCausland: And there of what they are going to do to support us. Any is very, very extensive joint training. diVerence that exists, as I have just outlined, Chairman: We have a division in the House of between the ACPO guidance and the military Lords. If any of our members want to vote they can guidance is a diVerence in relation to how the two go and do that. organisations work. The Committee must remember that the Army guidance applies The Committee suspended from 5.16 pm to 5.26 pm throughout the world. I understand that military for a division in the House of Lords. personnel are to use no more force than is absolutely necessary, which is the same as the Chairman: Can I just say to colleagues and to the police guidance. The AEPs may be fired when witnesses we have to finish this session by six authorised by the senior military commander at the o’clock at the latest because the Chief Constable scene when it is absolutely necessary to protect has to get a plane back to Northern Ireland. So can persons from physical violence. If the military are I ask colleagues to keep questions as short as deployed in support of the police, there is a very, possible and the witnesses their answers as to the very good liaison because at the moment I am in point as possible, and hopefully we will get through the command room to which the Chief Constable to finish by six. Lord Judd? refers and one half of it is where I command and next door is the equivalent brigadier who Q223 Lord Judd: My next question is to the commands exactly similar troops on the ground as Minister, if I may. There does seem to be a I am commanding the police in the same discrepancy between the accountability of the operations. We are virtually side-by-side in terms of police, whose every use of plastic bullets is the whole event. So there are co-located command investigated by the Police Ombudsman, and the rooms and that is the same for Peter Sheridan in Army, where there is no routine investigation of Rural Region. In reality, although Members may their use of plastic bullets. Could you explain this describe that there are diVerences, those diVerences and indeed tell the Committee whether youbelieve are merely in terms of how the organisations that it is justified to have this discrepancy? operate, but on the practicalities it is virtually one Mr Woodward: There very clearly is a diVerence, and the same. as the Chief Constable and his colleagues have outlined, but, having said that, I think all the caveats that the Chief Constable gave about Q222 Lord Judd: Youare confident that youcan deployment of the Army, and that in relation to the assure this Committee without qualification that police, and the position of the Chief Constable in consistency is absolutely eVective in joint relation to all policing in Northern Ireland, has to operations in Northern Ireland? be taken on board. The Army is there in support Chief Constable Sir Hugh Orde: I have been Chief of the police. They are used less and less, to the Constable for three and a half years and I have not point in relation to the enabling environment that had a situation in the last three marching seasons we are creating under the political process at the which has caused me any concern whatsoever. The moment normalisation is something that we are issue is a simple one, it is one of good control and very much moving towards and normalisation good communications. Duncan described the means coming to the end of Operation Banner and control rooms. They are side-by-side and that is it actually means a dramatic fall in the number of vital. Absolute clarity on primary is absolutely soldiers who are stationed in Northern Ireland. I vital. I have complete primacy. The military do not do think all that is relevant to seeing this because deploy in any policing situation unless we ask them. eVectively the Army are there in support of the The third point is the principle that we do not use police and, rightly, the attention post-Patten— the military unless we absolutely have to, and so although to be fair pre-Patten as well but we minimise the opportunity. It is quite interesting, particularly enshrined in institutions like the Northern Ireland has 29 policing districts, and in Ombudsman post-Patten—reflect the way in which only two of those districts are my district Northern Ireland is moving to normalisation, but commanders, my superintendents, allowed to equally, the respect that is actually being played out request military support without reference to an across all human right issues and the respecting of assistant chief constable. Three years ago it was all individuals in terms of their human rights, so I most of the Province. I think that shows how we think we have to see that, but nonetheless, as I have 3358395005 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 55
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland acknowledged, there is a discrepancy between the enquire into Army action in support of the police two. However, there is also a tendency here for a with plastic bullets as well as enquiring into the caricature of the position. In relation to the police, police itself? the Chief Constable has outlined the position. In Mr Woodward: I certainly think it is a case that can relation to the Army, I think what we have to be argued. I certainly think that if, for example, we remember is that the Army does operate around the were seeing circumstances which could literally be world. The circumstances that may give rise to the described as the mirror reverse of the normalisation deployment of this technology, the impact rounds we are seeing in Northern Ireland at the moment, to be precise here, is something that could be used there would be an even stronger case for it. As I elsewhere, and therefore the Army have to have a say, I think, Lord Judd, the MoD are the people standard that can be used around the world. In to whom that question is best asked. I am sure that relation to what happens in Northern Ireland, I if the Police Ombudsman were invited to consider think there are two things that are important to widening the brief of the Ombudsman, it would be say. The first is that the Army do have an something that they could look at, but in practical independent assessor of military complaints, and a terms, as I say, I think the Army does take all AEP review was last carried out in 2002, and that was firing seriously. It does have a mechanism to which about the use of baton rounds. Again I think that it can refer, although the procedure here of course is important because, as I say, it can be a means that the Police Ombudsman automatically caricature—and the Army has referred itself after looks at it. It requires in this case the Army to refer the use of the firing of impact rounds last year back itself but it has to be said the Army has done that. to the independent assessor to actually look at the There nonetheless is a distinction between the two. way that impact rounds were deployed and the I believe that the current situation in practical eVect on people as a result of them being deployed. terms works but I would be as interested as any That report is coming out in April and I am other member of this Committee to see it. confident—but equally the Committee will have to wait and see it for themselves—that although the Q225 Lord Judd: It would be working more processes may in practical terms be diVerent, in transparently if youhad the Ombudsman. reality what youhave actuallygot is an Army Mr Woodward: Some people would argue that it is which wants to be seen to be maintaining public more transparent but, equally, as the Chief confidence, to be using these under the correct Constable has said, we will face the situation this circumstances, to be absolutely not using them (just summer when hopefully we will not see a repeat of as the police) as a weapon eVectively to control the last year’s breakdown of law and order. Getting crowd, but again used in extreme circumstances these institutions up and running can often take where lives are threatened, whether that is members more than a few weeks, but I am confident that of the Army or indeed members of the community what we will see this summer is a peaceful marching out there. I think the caution I would throw in here season. Nonetheless, I am confident that the is that some people (I am not suggesting this procedures we have in place, and albeit an Committee) have been quick to judge the Army as independent assessor in the case of the Army, that somehow being completely diVerent from the if it unfortunately it came to a situation in which police. In practical terms I think people will see in impact rounds had to be used again, I believe that April that that is not the case, although I believe we would see the Army carrying out the same sorts that there a justification, because the Army of procedures. operates around the world and the Police Service in Northern Ireland self-evidently operates in Lord Campbell of Alloway: The Chief Constable Northern Ireland, for there being diVerent referred to guidance to the police and to the Army. procedures. I think again my advice to the Is it the same guidance? Who gives it to the police? Committee on this is if it wants to pursue the Army Who gives it to the Army? Is it in writing or is it on this matter, I do think—and I say this as a verbal and can we have a look at it some time if it former member of this Committee—it would be is in writing? Thank you. When you get to the stage worth inviting written evidence from the Army to of the Army coming in to support, who asks the draw to their attention the concerns of the Army and how is it done? Is it you, sir, who asks Committee. the general or whoever is in command? When they come in in support, it is quite apparent that they Chairman: I think we have the Minister for the could well be under diVerent rules of engagement, Armed Forces coming on 17 March. if youfollow. The questionis: are they? And if not, how are the standard Army regulations of universal application accommodated? I am after this because Q224 Lord Judd: One very last quick question. I I am particularly interested and I listened to Shaun hear what yousay and as a former Defence Woodward’s explanation and I realised that he was Minister I also see the force of what yousay, but dealing some of the way with this, I would like it if we really are dealing with a concept of an take it a little further. integrated operation in which the police have Chairman: Can I say, Lord Campbell, we have the ascendancy, is there not something to be said for written evidence of all this already in the extending the remit of the Police Ombudsman to Committee OYce so that has been submitted to us. 3358395005 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 56 Joint Committee on Human Rights: Evidence
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland
Lord Campbell of Alloway: Youhave that? than the older ones. Sadly, during this marching Chairman: The answer to these questions today in season there were so many people who were the light of the evidence that was given I would determined to attack police lines with huge force of respectfully ask to be given it, if we may. an adult age that obviously oYcers were deployed to deal with the most serious risk. Q226 Chairman: We have got that. Chief Constable Sir Hugh Orde: It is written in the Association of Chief Police OYcer guidance. You Q228Dan Norris: The diYculty of course is that have got that? That is fine. To help to meet the last although the Minister is right that the weapons are question, the other thing we do a lot of with the much more discriminating, there are always Army is joint training, so before any events there is ricochets and it is always diYcult with very young substantial training with police and Army working children to be absolutely certain what has together so they understand the tactics. In terms of happened. military aid under what we call Operation Banner, Chief Constable Sir Hugh Orde: It is and that is, which is to support the Police Service in Northern again, one of the sad, unique features of Northern Ireland, I meet regularly with the general oYcer Ireland, the fact that it is still alright for parents— (commanding) but in terms of the day-to-day and youhave seen the evidence, youhave seen the running of police operations, my assistant chief pictures—to actually encourage their children out constables work with the brigadiers to plan the to attack the police. That is something which, operation, so that is how that is done. Duncan may sadly, is something far wider than the police issue. want to cover that in slightly more detail. In terms We have to deal with the spontaneous or pre- of rules of engagement, we have a strategy to deal planned events as best we can. As I say, I cannot with every event. We declare our intentions which give youdetails becausewe simply do not know in terms of the marching season would be to what they are, but the fact we do not know means facilitate the march in keeping with the Parade they are probably fairly minor, as we described it, Commission determinations. That is a fairly and it is normally just severe bruising. general one but every parade where there is a Mr Woodward: If I might just add to that. I do not dispute has a determination given to it by the know if the Committee has had a chance to look Parades Commission, which provides a backdrop at the video of the last 12 July, but certainly it was against which we plan because we then know where my first experience of seeing at first hand what the march is allowed to go, where it is not allowed happened and I think it is relevant to your to go, and what the rules are in that regard. In question, Dan, about children because had you terms of the detail of planning and the rules of have seen what happened, what youwouldhave engagement I will ask Duncan to cover that. looked at what was not just a riot going on but you Chairman: I think that is a suYcient answer because we have got a lot of ground still to cover. Unless would actually have seen that maybe a quarter of Lord Campbell wants to pursue that? those out rioting were probably under the age of Lord Campbell of Alloway: No, I am totally 12. There was one point when many of the adults content. I got the flavour of it. had withdrawn but the children could not be Chairman: Dan Norris? controlled, and they were out there throwing things, standing next to blast bombs which had not gone oV. So I think we have also got to see a Q227 Dan Norris: I have been horrified to see how situation here that in order to control this, the very young some of the children have been in some police are faced with an absolutely terrifying of the awful instances I have seen on film, many of dilemma which is that it is not just that they may them below the size of the belt buckle or lower rib be needing to handle a crowd that is throwing cage or whatever. I am really pleased to hear that something, they may be having to handle a crowd it is 16 years since a person under 18 has been literally putting its life in danger because of the killed. Could you just tell me, however, something legacy of something that was left there ten or 15 about the injuries that young people have sustained because it may be of course with improved ballistics minutes before. I have to put on record my that they may not get killed but they may still get admiration for the way that the police deftly moved injured. Do you have any information about that? between using water cannon and other forms of Chief Constable Sir Hugh Orde: It is very hard to technology to control this because it was an find out what the injuries are because they do not extremely dangerous situation, and not just for the Y come forward. To some extent, that does indicate police o cers but for the children themselves, not they are low level because otherwise they would get because of the firing of impact rounds but because hospitalised and we would probably find out the children had been put slap next to unexploded something about it through the hospitals, although blast bombs. hospitals are tied by patient confidentiality. The Assistant Chief Constable Sheridan: I understand bottom line is the additional instructions to our the concern because children is the key issue for us, oYcers means, we hope, that most of the time they but I would be very surprised if any children who do not deploy against the youngest people because were injured in any way were not produced by they are less of a threat. The smaller ones have less people for ulterior motives to show that they had capacity to throw something a substantial distance been injured because they would have known full 3358395005 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 57
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland well we are unlikely to follow up children it terms probably worth again just reminding the on prosecution, so I would be very surprised if they Committee that so far the Committee of Ministers were not used. looking at this has recognised that there has Assistant Chief Constable McCausland: We used a already been significant progress towards full quarter of a million gallons of water on 12 July compliance. Five of the 11 measures have now been compared to 21 AEP. closed to address Article 2 breaches as defined by Chairman: It is a good job youhave not got a water the European Court of Human Rights in those six shortage in Northern Ireland! cases. We are continuing to work with the Committee of Ministers. We are continuing to meet the Secretariat and we do want to deal with all Q229 Mary Creagh: The European Court of these issues, but I believe it is absolutely right that Human Rights found the UK to be in breach of we deal with them correctly and that we get the law Article 2 of the Convention (the right to life) with right because otherwise, as you say, there is a its failure to institute independent, prompt and thorough investigations of the deaths in the cases danger youend upwith a two-tier system and that of McKerr, Shanaghan, Jordan, Kelly, MacShane, is not what anybody wants, and it is certainly not and Finucane. The decision was challenged before what the British Government wants either. the domestic courts in McKerr and the House of Lords found that the Human Rights Act could not Q230 Mary Creagh: Are youconfident that the be applied retrospectively. I do not know whether Historical Enquiries Team will be able to conduct members of the Committee and our witnesses have an eVective investigation into these deaths which seen this report which we received today from the date back so many years? Northern Ireland Human Rights Commission Mr Woodward: I am glad youraised the question entitled Investigating lethal force deaths in Northern of the Historical Enquiries Team because, again, I Ireland but there are some very interesting think that is one of the most important steps recommendations in that report, particularly forward that we are going to make in the context around the Coroners Service. I wondered if you of looking forward in Northern Ireland in every could tell us, Minister, whether you feel there is sense. The Chief Constable can correct me (as he now a two-tier standard for inquiries, with a lesser has ultimate responsibility because they will report standard applying to deaths that occurred before October 2000? to him in that independent capacity) but I think we Mr Woodward: I very clearly would not want to have got something like 2,000 unresolved cases describe it as a two-tier standard because I think here. We have made £32 million available for that is a caricature of the position. Nonetheless, as looking at that. There may be prosecutions as a a point of law, very clearly one has to recognise result of this, but what I think matters critically for that in 2000 we had the introduction of the Human all the families of the victims involved in this is that Rights Act which inevitably changed things in to enable those families to be able to get on with terms of a movement from international their lives, we need to be able to give them at least obligations to incorporating into domestic law the tools to bring closure to what for many of them changes that have taken place. At the same time, are hugely unresolved and still even 20, 25, 30 years as youknow, in the case of one judgment, McKerr, later extremely painful, terribly tragic we are actually looking at something where they circumstances to which they may know very, very ruled that deaths which took place before 2000 little. This is an opportunity to review all the would not be subject to Article 2 obligations. At evidence that is available. We believe that we have the same time, as youknow, for some cases going given the powers that are necessary to do that, and before the courts now it would still be another two I think again in the context of allowing Northern years before it comes to the House of Lords, and Ireland to move into its future, it is very important there are considerations of other judgments that that we take this as seriously as we possibly can and undoubtedly will aVect and impact on the law. I that we do everything we can. Certainly it is our believe the absolutely correct thing to do here is the intention to give the team that are doing this every very opposite of what was implicated in the idea of tool available so that they can give closure to these a two-tier standard, which is to get this right. It families, and where it is appropriate when evidence does require us to be patient, to wait for those comes forward as a result of this which allows us judgments. It does require us, in every shape and to bring a prosecution, then we would welcome form, to have due regard to the judgments made in seeing that. Europe and to get it right. I can say to you with absolute certainty that the British Government wants to honour its obligations, but at the same Q231 Mary Creagh: Our Committee, amongst time we have to actually get this right in terms of others, has been critical of the Inquiries Act and the law. So as far as we are concerned, we do want the capacity of that Act to provide the independent to work with the Committee of Ministers on this inquiry that is required in the cases of death or and I will actually be publishing tomorrow our inhuman or degrading treatment. How can you latest response to the Committee which will be ensure that in practice inquiries under this Act will looking at a number of the areas that you actually be independent and will command public mentioned in your opening question. I think it is confidence? 3358395005 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 58 Joint Committee on Human Rights: Evidence
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland
Mr Woodward: I am rather sorry that Lord Lester Q232 Mary Creagh: Can I ask the Chief Constable cannot be here because, as I think you may be about the Historical Enquiries Team and the aware, he is an extremely strong exponent of the practicalities around it? value of the Inquires Act, and not least because it Chief Constable Sir Hugh Orde: It is a huge seeks to put into a statutory framework and on undertaking and it has never been tried in the a very clear and transparent footing a method of history of policing, to my knowledge. It was our proceeding for an inquiry, which I think was not idea and we are very proud of that because I think straightforward before and certainly was not we are doing something. There are 2,000 cases appropriately codified. The issue that often arises which in sheer scale is a huge undertaking, let me in relation to this is whether or not there will be be clear about that. You are very right, the older real independence. I think it is important to the case the more diYcult it is to reinvestigate, and recognise that, yes, ministers set the inquiry up there is now some Strasbourg case law and, yes, ministers choose the chair, but that acknowledging the fact that even under Article 2 happened before anyway. The diVerence here in the older it gets the harder it is to try and re-run the statutory framework is that we are giving the a full investigation and that it is not likely to inquiry the power to compel evidence to be succeed or deliver a desired outcome. What our produced, to compel witnesses to be produced. It focus is on this is around the victims and I think starts with the premise that this will take place in there are two ways. What is a successful outcome public, unless there is a reason provided for a of the enquiries team? Is it a prosecution? If I were restriction, for example national security. to be frank, that is highly unlikely in most cases. However, even where those restrictions apply, the We are operating under what we call the chairman and the panel will still see all of the “principle of maximum disclosure”, which is we evidence. It just may be that if it is a question of will tell the families of victims as much as we national security that it cannot take place in possibly can about what was done, the state of the public, and I think members of this Committee investigation, our assessment of the investigation, would want to understand that there are issues was it a good investigation, was it a bad that for the sake of national security, which of investigation in the context of a situation when course may involve the protection of individuals’ nearly 500 people lost their lives in one year, in lives in being revealed in public, have to be terms of what was the RUC capable of delivering safeguarded, and we have to have due regard to in that environment? Indeed, if we do find new the human rights of those individuals as well. lines of enquiry or new evidence based on forensic Again,itisimportanttonotethatunderthetechnology then we will tell them that as well. I Inquiries Act the Chairman does have the power think will get as much closure for the families out to go to the High Court if they believe that of telling them the story as we will out of any evidence is being withheld by the Government, for chance of a prosecution where, frankly, if we are example, and to demand that evidence be lucky and convict someone they will serve less produced. Critically, I underline the assumption is than two years in prison. I think there is a wider that everything will be held in public unless there issue here. We can do our bit and we can look at is a justification for it not being done so. The case law and we be held to account and spend £9 conclusions of the inquiry will be public and they million—I was involved in the Finucane Inquiry will be published. I think this is a good step for two and a half years—on one case, whereas I forward. It was interesting reading during the have got cases of deaths of double murders of Y proceedings of the Bill Lord Lester’s remarks in police o cers that are not at all thick. There was relation to the support of this. I know there have 13 tonnes of material in Finucane compared to a been concerns but, to be frank, there were few pages in a double murder. I think it is around concerns about the way that inquiries were held giving some solution to as many people as we can, before the Inquiries Act. I think we have got a but I am a great believer and I think the debate really needs to be opened now around third ways more independent system. I think it is more robust of dealing with history and what other ways we in terms of the statutory framework and, can bring to bear to bring closure because the ultimately, I think it is probably worth considering judicial system, in my personal assessment, is not that there are two inquiries at the moment in the the way we are going to achieve satisfaction for all context of Northern Ireland (the Wright Inquiry those people who still live the reality of the past and the Hammill Inquiry) where the chairman of day in day out with nothing. I do not think at the both of those has asked the Secretary of State to moment we are seeing a huge amount of debate convert them into inquiries under the Inquires around that. My opinion is that it is one element Act. The interesting thing about that is they did of it and we are determined to do the very best we not have to ask for it if they did not think it would can but it is only one element of an overall be better. The reason that they have asked for it solution to history. (one of those has been given by the Secretary of State and the other, the Hammill Inquiry, is under consideration) is because those chairmen thought Q233 Baroness Stern: Could we move on very they would have a more robust, transparent quickly to a question about prison conditions and framework to have their inquiry than they would quite an appropriate question for International have done under the previous system. Women’s Day. The Committee against Torture 3358395005 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 59
8 March 2006 Mr Shaun Woodward MP, Chief Constable Sir Hugh Orde, Assistant Chief Constable Peter Sheridan and Assistant Chief Constable Duncan McCausland highlighted prison conditions for women in us on our toes but as a principle they are extremely Northern Ireland, at Hydebank Wood. Has there important. That being said, the move from been any progress in improving conditions there? Mourne House to Ash House, occasioned by a Perhaps I will ask youthe second part of the very diYcult report that was made, undoubtedly question at the same time. Is there any progress in created huge strains on the Prison Service as it had providing a separate prison for women, as to suddenly adapt. It was quite right that the move recommended by the Criminal Justice took place because the old conditions were Inspectorate? absolutely inappropriate. The new conditions are Mr Woodward: As I was involved in this significantly better. I think, for example, the move Committee’sworkondeathsincustody,Ithat I announced towards the end of last year that remember we as a Committee looked at a number within the Prison Service we would move medical of these areas, and this particular area with the care, for example, out of the hands of the Prison Security Minister in Northern Ireland, I would Service and into the Department of Health is like to say two things first of all about this. The another step forward. There is a need to make a Prison Service is very aware of its historical number of steps forward and we are improving it shortcomings. The two reports focused on, first of in terms of in-cell sanitation for women. We are all, the lack of gender-specific regime and policy also developing a whole series of gender-specific and, secondly, the unsuitability of the programmes rolled out this year around mother accommodation in general, which is what I think and baby, suicide, self harm, child protection, re- they really add up to. The Prison Service wants to settlement anti-bullying, which I think is again act, and we have an outstanding Director General another serious problem. of the Northern Ireland Prison Service, Robin Masefield, who is personally as well as Q234 Chairman: I am afraid we have got another institutionally committed to improving the division in the Lords . We will have to end the position. A detailed action plan has been drawn evidence session now. Was there any particular up. We are acting on that. For example, 75 per point youwanted to develop on that? cent of the staV now looking after women are Mr Woodward: I am very happy to both answer female. We have a female governor. We have therestofthatquestioninwritingandalsothe gender-specific programmes and policies. We have other question I know you were going to ask. ensured (because I believe it is absolutely right) that the Human Rights Commission now has on- Q235 Chairman: There is only one question left in going access to our estate which allows it to come writing so perhaps we will put that to you. in and make those visits, which I think are Mr Woodward: I am very happy to raise that. extremely important, not just in terms of keeping Chairman: Thank youfor yourevidence. 3358395006 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 60 Joint Committee on Human Rights: Evidence
Monday 27 March 2006
Members present:
Andrew Dismore, in the Chair
Campbell of Alloway, L Stern, B Judd, L Mary Creagh Lester of Herne Hill, L Dr Evan Harris
Witnesses: Rt Hon Adam Ingram, a Member of the House, Minister of State for the Armed Forces, Lieutenant General R V Brims CBE DSO, Commander Field Army, and Dr Roger Hutton, Director, Joint Commitments Policy, Ministry of Defence, examined.
Q236 Chairman: Good afternoon, everybody. This it is given particular emphasis in predeployment session is the final oral evidence session of our training. We do all we can to make sure that our inquiry into UK compliance with the UN personnel have a very good, clear awareness of what Convention Against Torture. Amongst the issues they can and cannot do, what they should and arising from that treaty which we shall be asking Mr should not do, and that works right through the Ingram about is the adequacy of the arrangements whole ethos of what we ask of our Armed Forces. for ensuring that UK service personnel have Where things may go wrong, where there may be retrained in their human rights obligations, failings which come to the surface and we are aware particularly in relation to UNCAT. We are not of them, then clearly we seek to learn lessons from investigating particular cases where there are that: why such an event happens. Is there a failing allegations of human rights abuses committed by somewhere within what we are doing? There is a British troops in Iraq. We also remind members and dynamic to what we do at all times. We have always witnesses of the sub judice resolution of both Houses to be making sure that the messages we are seeking which prevents reference to cases in which legal to impart and the strictures which we ask our people proceedings are active and I shall intervene if to work under are clearly and best understood. That necessary to ensure that the sub judice resolutions are is a very firm commitment. Before I ask General not infringed. Having said that, welcome to the Brims to give youfurtherex pansion on that, if you Minister, Adam Ingram, to Lieutenant General require it, I think the test of how good we are—and Brims, Commander of the Field Army, and Dr I make this point: we are not perfect, we cannot be Hutton, Director of the Joint Commitments Policy, perfect, although, as I say, we try at all times to from the MoD. Do youwant to make an opening attain the highest of standards— is that we are called statement, Minister? upon repeatedly. We tend to be the country of first Mr Ingram: No; straight to the questions. choice in terms of training of other personnel, indeed even amongst our allies, not just in those countries Q237 Chairman: The first question is the key one where we have found ourselves helping to re- really. Would you accept that the Army’s eVorts to establish structured entities. I am thinking here of provide guidance and training on the treatment of Iraq or Afghanistan or the Balkans, but even civilians and detainees have not been as successful as amongst our allies they will call upon our expertise they should have been in preventing ill-treatment in in, our knowledge of, how we handle situations. A practice? We have obviously received your written lot of that, as I am sure the committee will material, from which we will not quote directly, but appreciate, comes from our long experience in has it worked? Northern Ireland and the processes that we have Mr Ingram: Perhaps General Brims is the best man gone through there to get all of that as finely tuned to answer this, given his detailed and intimate as we possibly can. Unquestionably people through knowledge of all the procedures which apply in this, the years have picked up a lot of knowledge and but I do not accept the premise of the question, that capabilities and, as I say, a very good understanding we are failing in this. We have put a lot of eVort into of the limits as to what they should and should not and a lot of emphasis on all aspects of both domestic be doing. and international laws under which our personnel, Lieutenant General Brims: We train our people, both mainly soldiers, have to operate. All members of the oYcers and soldiers, when they initially join. That is Armed Forces, of course, will be given full training when the start point is made and then every year, but perhaps it more directly aVects those in the come what may, there is further mandatory training Army in the sense of the interface that they will have for everybody. Then, as people go through their in any particular country. Also, it is fair to say that career development courses, there will be further we cannot be perfect; it is impossible to be perfect. specific training to the context of usually the rank as We set out to try and be as comprehensive as we well as the place somebody might find themselves in. possibly can be. We try to make sure that all our Then, of course, there is our approved appointment personnel are properly trained, and it is not just a training before we deploy on operations. As the one-oV training. That is the whole culture of what Minister said, we have a “lessons identified” process happens to them from their early days of initial and we learn those lessons. We obviously learn from training right through all their training, and indeed particular cases, we can learn from allegations, and 3358395006 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 61
27 March 2006 Rt Hon Adam Ingram MP, Lieutenant General R V Brims CBE DSO and Dr Roger Hutton on the other hand we also learn from best practice, Q239 Chairman: I presume the answer to this is be it our own best practice or indeed perhaps going to be separate; it is quite obvious from what another nation’s best practice, and we share that you have just said, but are you satisfied that troops with other organisations. If we take somewhere like are fully aware of the prohibition on all five of the Iraq, I was commanding the British troops in the five techniques which were ruled unlawful in the original operation in Iraq in the spring of 2003, and Northern Ireland cases? at that stage it was a new operation but I was clear Lieutenant General Brims: I think if youwent and on more than just what our duties and asked most troops, “What are the five things that responsibilities were in this instance. It seemed to have been banned?”, they would look at you and be me—it seemed to all of us—that in the operation we unable to communicate to you. If you wrote down were about to engage on it was as important, not these five things, “What is your view on them?”, they just, if I dare say it, to be legal, not just, if I dare say would say, “You should not do them”, if you follow it, to be moral, that we had to act decently to all the the answer. The answer is yes, but if you posed it like Iraqis with whom we might find ourselves in that they would not understand what the question opposition because we would have to work together was. afterwards, and that was a key part of our process from the start. Now, three years on, we are in an Q240 Lord Lester of Herne Hill: I was counsel for the enduring operation and the training we are giving to Government in the Irish state case and persuaded our people is very much from that experience, so we the Strasbourg court that what was being done in have instructors who have done a tour of duty there. Northern Ireland was not torture but it was They come back, so they have got great authority in inhuman treatment, and we gave an assurance about what they say both from the point of view of the those five techniques. I was also a National Service general public and indeed for the soldiers being oYcer, not the most glorious part of my career, but instructed. I had to take part in training in those days through the Suez war, and I would be grateful if you could be Q238Chairman: One of the lessons that has come a bit more precise about the kind of guidance, out of Iraq is the need to clarify the prohibition on written guidance, which is given and the extent to the hooding of detainees, with new guidance being which that guidance could be made public. I have issued, as I understand it. Have any other not read any of the scripted material that we have been provided with and I am therefore in the happy experiences from Iraq led to a more general review position of ignorance, but when I was in the Army of training, in its frequency or intensity? there used to be a manual of military law with a Lieutenant General Brims: Yes. On hooding we have section on human rights and humanitarian law given very clear direction and hooding itself will not which was written by Sir Hersch Lauterpacht, later take place. It is permissible to blindfold in some a judge on the International Court of Justice, and other way in certain circumstances but we care not Colonel Draper, a great military lawyer. That set out to do that at the moment. Right at the start I extremely clearly—and this is 40 years ago—what mentioned in this the Iraq operation. I emphasised international human rights law and humanitarian the importance of acting decently and I think we all law had to say, and that was a public document. The understood it. About a week into the operation—I public knew and everyone else knew. There were cannot remember the exact date—I actually went to obviously secret things that the public should not the prisoner of war handling organisation and I saw know. My question really is whether there is now an Iraqi soldier who was hooded being moved from such a document like the manual of military law A to B. He was being treated very humanely, he was section on human rights and humanitarian law being led. I deduced that he was hooded—this was which every soldier, sailor, airman or woman could not part of my visit; I observed it—and that he was benefit from, and the public and, if not, whether that being deprived of sight because he was being moved could be considered. Going back to the five through areas where there was documentation and techniques, I am a bit worried by the answer we have other people, so I can understand why. I personally just heard because we gave a specific assurance did not think that the image of somebody being under international law that we would never use the hooded in this way was right. That evening I combined five techniques, and while I appreciate discussed it with my senior staV and took legal that no soldier could be expected to know what the advice, and although I was told that we were judgment of the court was there must be surely some permitted to do this under law I decided as a matter document which says, “Here are techniques: of policy to stop doing it. Of course, the hooding at hooding, standing against a wall, not being allowed that stage was not in any way connected to any form to go to the lavatory while under interrogation”— of interrogation. It was just in the handling and the there were five of them which in combination were in movement of people who were prisoners of war. violation of the European Convention. There must That was completely diVerent because I think we are surely be some specific guidance, not just a matter of all quite clear that that would be unacceptable in whether youthink it is right or wrong. Can we know, terms of how to treat somebody under interrogation. in terms of documents, whether there is such a We have updated our instructions from there, and document, and why can the public not know that we continue to do so, and we are very careful in the those prohibitions are in a document the public can training we provide and it being updated in a see as distinct from matters that the public should contemporary way over time. not see, like specific interrogation techniques, 3358395006 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 62 Joint Committee on Human Rights: Evidence
27 March 2006 Rt Hon Adam Ingram MP, Lieutenant General R V Brims CBE DSO and Dr Roger Hutton because it seems to me that it is in the public interest against Torture apply to those in the custody of that that kind of information should be available to British troops abroad and to the transfer of those everyone on a standard basis? prisoners to the custody of other states? Lieutenant General Brims: Of course. The five Mr Ingram: Do youmean that when we transfer techniques are applied in the context of them to another state, whether it was Iraq or interrogations. Afghanistan, or indeed whether the provision applied in the Balkans or anywhere else, do we then Q241 Lord Lester of Herne Hill: Yes; I mean have the responsibility for the monitoring of interrogations. UNCAT? Is that the substance of your question? Lieutenant General Brims: Only selected people can conduct interrogations and they go through very Q246 Chairman: There are two halves to it, are specific training. I am not one of those people. They there not? are a relatively very small number compared to the Mr Ingram: Surely we have to respect the sovereign mass and I do not know the status of the training rights of those countries. Those are sovereign states. manuals from which their training is drawn but I am We have MOUs and we have arrangements with sure somebody could find out what could be put into those states so that when we transfer those who have the public domain. been detained by us to them we have to satisfy Chairman: Could you write to us about that? ourselves that they will be treated properly, and we make that part of the stipulation. If we discover that that is not happening, with or without an MOU, Q242 Lord Lester of Herne Hill: I was not only then we would not be satisfied in terms of the asking about the interrogation. transfer, if that answers your question. Mr Ingram: Youmean generally. Q247 Baroness Stern: Yes. Q243 Lord Lester of Herne Hill: I was saying that the Mr Ingram: Then we would take it up with the host obligations on the Armed Forces to respect the nation, talk through what is our evidence and what international obligations need to be in some public areas of concern we are raising or why we are raising document so that everyone can see what they are and it, and then to seek to establish a better practice we know where they are without going into secret before the transfer would take place. However, I do terms of engagement. make this point, that at all times we have to respect Dr Hutton: There are complex doctrine documents those sovereign states. Those are states in their own prepared by the Joint Doctrine and Concept Centre right in terms of the United Nations and therefore at Shrivenham which flow down to the Armed they have the responsibility also to comply fully with Forces with guidance on these kinds of issues. I am this. If youare saying that we shouldact as a sure that many of those details are obviously not policeman in those circumstances, it seems to me releasable publicly but we could look at what parts that goes against what we are seeking to establish, of them are releasable into the public domain and which is properly formed sovereign states that have write to the committee as suggested. responsibility for their own standards and their own Mr Ingram: My understanding is that we have codes of practice. I repeat the point: we would have furnished you with a lot of documents as per your to be satisfied before we transferred through an request and I am trying to find out if that was a MOU or without an MOU that there were proper request. I do not know whether that specific question standards being applied in those circumstances. We was raised with us and whether we have or have not would not pass over people if we knew they were then responded to it, but we will certainly do so now. going to be inhumanely treated or tortured. Lord Lester of Herne Hill: This was raised during the debate on the International Criminal Court. That is Q248Chairman: The first part of the question I do why I am raising it now. not think youreally dealt with, Minister, which is the straightforward one: do youaccept that UNCAT Q244 Chairman: We will certainly respect the applies to those being kept in British custody confidentiality of the documents you have sent to us. abroad? The question is, can any material on this issue be put Dr Hutton: I think it is worth making the point that in the public domain, and if you would write to us we accept that UNCAT does apply to our troops that would be very helpful. overseas because it has been enshrined in British law Mr Ingram: We are happy to do so. in section 134 of the Criminal Justice Act 1988 and therefore British soldiers carry it with them. Q245 Baroness Stern: I would like to ask you a question about the applicability of the United Q249 Lord Campbell of Alloway: Just following up Nations Convention against Torture to UK forces on torture and transfer for torture, they are put abroad. Youwill know that the United Nations together as one butthey are tw o very diVerent Committee against Torture stated in its concluding problems. On the question of torture, the Army as observations that the Convention did extend that such is really in no way concerned with that. They far. There has subsequently been a court case, which are not meant to torture people and they do not I do not think I am supposed to talk about, so my torture people by and large, and if they do it is very question is, in the light of these things is it now your serious but it is one-oV. It is quite out of your remit, position that obligations under the Convention is it not? In the second part, the transfer for torture, 3358395006 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 63
27 March 2006 Rt Hon Adam Ingram MP, Lieutenant General R V Brims CBE DSO and Dr Roger Hutton youget into this businessof extraordinary rendition, Mr Ingram: On the background to this, it was as a and extraordinary rendition is a euphemism for matter of courtesy that we wrote to Sir Menzies interrogation under torture. That is why it is Campbell because he had asked a catch-all question; extraordinary. This has nothing to do with the a fishing expedition question is perhaps the best way Army, has it? You would not wittingly transfer to describe it. We could not answer it in the way in anybody for torture, would you? It is not within which it had been framed because he was asking us your remit. I have read all your documents, which I to go through a whole lot of records, which may or must say seem to me to be totally satisfactory in may not exist, and we said it was a disproportionate every way, and when I served in the Army in 1939 we cost. We were then subjected to a request from a were only taught what not to say when we were journalist; from memory it was an ITN journalist, taken prisoner. We were never taught how to treat coupled with a request from one of his colleagues, prisoners. Of course it did not arise; we did not take Nick Clegg MP, and as a result of that, which then any anyway, so it is a totally diVerent ball game, is became more specific, we then looked at the specific it not? numbers and specific airfields, as a result of which we Mr Ingram: My Lord, we are not into investigating said yes, we had electronic data on all of that and your past, and I think in a sense you have then, as I say, out of courtesy, we wrote to Sir encapsulated it correctly. We do not torture. We do Menzies Campbell. He looked as if he had provoked not condone torture or inhumane treatment or us to the realities. He did not. It was occasioned by abuse. It depends how all those things are defined. other questions in all of this. In terms of the latter Our people are very alert to all of that and I said in part of your question, there is no question at all: the my opening comments that we are not perfect. Foreign Secretary has made it clear time and time Sometimes some of our people will step over the line. again on this, and I do not think I have anything If that becomes known to us an immediate further to add to what we have explained both orally investigation will be carried out into the and in writing and I do not believe youhave had circumstances and we could find some of our people written evidence from the Foreign Secretary or being court martialled. Indeed, the United States anyone else on this matter. I have nothing further to have dealt with some of their people through the add in all this. I did make the point that there is no judicial process. Some of their people are in jail. evidence to show that any of those aircraft were There is without question a great realisation that as carrying any passengers of the type where the well as trying to establish peace, stability and accusation is leading. On the previous occasions in freedom we are also trying to establish the highs and 1998 when the US were seeking to do just that, they norms of civilised society and that goes along with sought permission on each of those occasions making sure that we do not breach any of those through the Home Secretary, and it was the current aspects of international law. Foreign Secretary who was the Home Secretary at the time. Two of the requests were agreed to and two Q250 Lord Campbell of Alloway: But on the process, were rejected, so in terms of the way the US goes sir, it is nothing to do with the Army. This about its business everything shows that they do seek extraordinary rendition is an arrangement between permission if they are going to do what many people intelligence services that planes land here and refuel believe is happening, so there is no evidence that it is and go oV somewhere. It is nothing to do with the happening. Army. The Army is in no sense involved in this; is that not right? Q252 Mary Creagh: We have just returned from a Mr Ingram: I do not accept for a moment, and the committee visit to Canada where we heard about the Foreign Secretary has made this very clear, that rendition of a Canadian citizen to Syria. That was there is any evidence to show that there are people rendition, not extraordinary rendition, but then he on board those planes which do land here who are was held in Syria and was tortured for over a year. being transferred for the purposes of extraordinary Mr Ingram: Through the UK? rendition or, as you would define it, torture. There is no evidence to show that at all. Lord Campbell of Alloway: Whether it is accepted or Q253 Mary Creagh: No, through the US, and there not, leave that open. Whether youdo or do not is an issue about the whole Canadian Intelligence accept it, it is nothing to do with the Army, is it? Service involvement in that, but you agreed— Chairman: Mary wants to follow this up. Mr Ingram: I am sorry to interrupt, but because other nations may do that, that should not prove the Q251 Mary Creagh: Minister, youwrote on 6 March case that we do this. to Sir Menzies Campbell and said that aircraft known to have been chartered by the CIA landed on Q254 Mary Creagh: What is stopping the 14 occasions at RAF Brize Norton and Northholt. Government boarding these flights to ensure that Given that information, do youaccept there are now there are not these extraordinary renditions taking Y reasonably su cient renditions to require the place on British soil via British air space? Government to investigate further and in particular Mr Ingram: We have to have evidence for that. to board and search the aircraft if they pass through the UK again, given that there is nothing in the Chicago Convention generally to prevent those Q255 Mary Creagh: Youcan only obtain the actions taking place if rendition is suspected? evidence if you board the planes. 3358395006 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 64 Joint Committee on Human Rights: Evidence
27 March 2006 Rt Hon Adam Ingram MP, Lieutenant General R V Brims CBE DSO and Dr Roger Hutton
Mr Ingram: I put it to you that then we are working in each of the departments at this point in time. If it on the assumption that our closest and longest allies is on the basis of international discussions, as I am are not being honest with us. Why should we operate sure you understand, my Lord, it is the Foreign on that basis? Why should we operate to undermine OYce who would have to answer that, or the our allies in those ways when in the past they have Foreign Secretary, and if it is specific matters shown their willingness to advise us? Where they relating to transport conventions then it would be have sought to use flights for that purpose they have the Department for Transport. We will certainly sought permission, and there have been no such note the question we have been asked and if we can requests since 2001, but the suspicion seems to be we will get that to you or ask those departments to that it is happening because we have not been asked. write to youon the basis of that. That seems to me not logical, nor is it a fair view to take of our longest and closest allies. We are jointly Q257 Lord Judd: If we can return for a moment to trying to tackle the biggest threat that we have faced the issue of torture and the implications in Iraq, probably since the Second World War, some people some of those who submitted evidence to us have say it is even bigger because of the fact that we are argued that there have not been prosecutions when now given non-states. Unquestionably it is a very Y there was a lot of evidence to suggest that there di cult issue to attend to because there is no should have been prosecutions. There does seem to evidence to back up the allegations or the be quite a gap between the number of allegations and assumptions. the number of cases that have been pursued. I wonder if you could explain that to us. Q256 Lord Lester of Herne Hill: Minister, the story Mr Ingram: I know from my point of view that so far is that originally, when Baroness D’Souza put within the Armed Forces there could be a view being down an amendment to the Civil Aviation Bill, we expressed that we are being investigated every time were told by one of your colleagues that the Chicago we do anything, even when we return fire in contact Convention prevented any action whatever. That situations. There is still a view taken: was it then changed and became, “Actually the Chicago appropriate? Clearly, where there is then an Convention is not a barrier”, and then it changed, allegation made, whether it is someone within our helpfully, and answered some of my questions. We custody, whether it is something that happened on are now asking the United States authorities for the the street or whatever else, and there is suYcient future to deal with the matter in a particular way, evidence to justify it, there then is an SIB, a Royal and that is all youputon the record. What we do not Military Police Special Investigation Branch know is how the United States has responded to the investigation carried out into that. The very nature United Kingdom’s requests to try to put a stop to the of what they have to do, I would say, means that it suspicions about the matter. I would be very grateful will take time. This is not your downtown Clapham to know what response there has been because I and knocking on a door and saying, “Right, lads, I commend the Government for now having, rather want to take youin for questioning”.These are very late in the day, taken that action. The other thing is hostile environs. I was Security Minister in Northern this. You talk about fishing expeditions but, of Ireland. There was part of Northern Ireland where course, the reason why fishing expeditions take place the then RUC would be very reluctant to go without is that people want to know whether there are any a full Army back-up. I am not saying there were no- fish, and the only way people who will know there go areas, but there were some areas where there was are any fish is by the British Government asking the a lot of risk associated with it and therefore there had United States whether there are any fish, and since to be more astute policing in those circumstances. I none of that has ever been disclosed think youcan multiplythat in Iraq and elsewhere. parliamentarians do their best laboriously to find That takes time to investigate. It is easy to make an out the answer. Has the Government taken steps to allegation. It is much more diYcult to prove the case. ask those questions and what response have they What I am saying is that we have put a lot of eVort received, because that is what the public are crying into investigation. It will take time, and people have out to know? been brought to trial, and some people have been Mr Ingram: I am not ducking this question but I will and probably will in the future be found guilty of take the fish analogy first. I fish. If I was studying the what they have done wrong; there is no question water I would try to find out where the fish were about that. We have rigour within our system and I before I cast. Youdo not cast arbitrarily. Youtry to think we try to carry it out to the very highest Y know where it is. What I am saying is that there is no standards, albeit in very di cult circumstances. evidence in terms of the views that have been expressed, that it is almost saying they are guilty Q258Lord Judd: I hear what yousay, Minister, but before it has all been proven. I am saying that is an it does seem to me that if youare going to win hearts assumption. I am not saying, my Lord, that that is and minds there is a relationship between the the approach to this. In terms of the Government’s amount of concern there is and the vigour with response to this—and this is where I am not ducking which you are seen to be pursuing the allegations the question—it is not a matter for the MoD. It is a that are made. Could you assure us that there is no matter in terms of what those international relations problem here about inadequacy of investigations, are or, if it is transport, youwouldhave to take and could you, while you are doing that, also evidence from the Department for Transport. I perhaps cover one other point that witnesses have cannot answer for all the developments taking place raised with us? You suggested that it is not 3358395006 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 65
27 March 2006 Rt Hon Adam Ingram MP, Lieutenant General R V Brims CBE DSO and Dr Roger Hutton altogether convincing in such a highly charged Iraq or Afghanistan. I will give youa very good situation when you have Court Martials which are example of why this is diYcult, and I will answer so close to the Armed Services themselves and that whether I am satisfied or not in a moment. When we there is a case for a more independent form of were dealing with the issue of the training of the civil inquiry into something as serious as torture. That police in Iraq there was then an RUC oYcer, ACC has been put to us and it would be interesting to hear White, who was in charge of that, and the request your comments. had come for more civilian police trainers from this Mr Ingram: It would be put to you because there are country. The Association of Chief Police OYcers in people who want to be critical without necessarily this country said they could not agree to such a examining the ground truth, as I would describe it. transfer of people for training purposes because it In terms of our investigatory procedures, one of the was too dangerous an environment. ACC White things that we have had to attend to is the extent and said, “What are policemen for other than to take on the scale and the range of issues which we have to danger and violence?”. That became a bit of a debate deal with in terms of investigation, and I have given about the civil police in this country not even being yousome of the problems. We have now asked Her prepared to engage in that process of training, so Majesty’s Inspectorate of Constabulary to how can we expect them to supplement what we do undertake an examination of the SIB in terms of with the SIB? I make this point because if we do those higher level investigations to make sure that identify weaknesses we may not be flexible. Am I we have the necessary resources, we have the satisfied? I think we apply very high professional forensic skills, we have the right strength and depth standards. Again, I am not a military man but I to be able to carry that out, but if there is a very know that when the SIB comes in this is going to be significant growth in cases to be investigated we a very thorough investigation, and if anyone who must be limited by the nature of the numbers. We thinks they are innocent, “Why am I going to be put can only have so many trained people, and I think it upon in this way”, we have to do it. We have to hold is then unfair to criticise us if we are not then people to proper processes of investigation and the carrying out every investigation all at the same time. due process of law. Otherwise we are failing in There are civilian police forces in this country that setting standards for others. would be stretched to carry out four murder investigations at any point in time and would have Q260 Lord Judd: Minister, just this very weekend I to call in resources from elsewhere. It may be more have been at a conference where a very senior retired critical than that. There may be two concurrent American State Department oYcial said to me that major murder investigations and some of the small Y he had the impression that the British Army was forces would find it di cult. It seems to me that particularly good with our hearts and minds when youtake that into a hostile territory and approach in a situation like Iraq and how much he environment such as Iraq, it clearly is going to be Y commended that, and he thought the Americans much more di cult. Having said that, we are could on occasion learn from the British Army at its examining what we are doing. Although peer best. I just make the observation in the light of what reviews are carried out in terms of some of our major yousaid, and if youwant to comment please do, that investigations which say that we have standards as we are supporting those who want to promote the good as civilian police forces in this country, fight for hearts and minds if we argue for the most nonetheless I will now go and give the subject even transparently vigorous and rigorous investigation of greater examination. We want to make sure that any complaints about unacceptable behaviour. people understand that we are doing everything to Mr Ingram: I could not agree more; I echo that the highest standards because it is, you are right, in entirely, and it is part of our understanding that we terms of winning hearts and minds. If we are not have to ensure that happens. The consideration of achieving those high standards we will not win the the Armed Forces Bill should be coming to your communities whom we are trying to serve, and that House anyway and that Armed Forces Bill takes was a Northern Ireland experience just as much as it into account all of that process, not so much the is now. investigation but the way in which the law should apply in certain given circumstances and who has Q259 Lord Judd: Minister, youare utterlysatisfied authority to call investigators in. As ministers we do with the adequacy of the investigations that are not have control over the investigation, nor over the being made? judicial process. It is wholly independent. If we had Mr Ingram: Let me put it this way. We are calling in that power it would not be compliant with human the HMIC to examine what we do, and I think it is rights legislation. better we wait to get that qualitative assessment. I am not a police oYcer; I have no background in this. Q261 Lord Judd: Could I turn now to something I could not say whether a particular investigation that has come up in the context of taking evidence was well carried out or not. I am conscious of the fact about Northern Ireland? It came across there that on that we are limited by the numbers of people we the use of AEPs the Army and the police have have, and I make this analogy about several police diVerent guidance. The police guidance, for forces, where --- I do not want to mention one. Let example, says that AEPs should in no circumstances us say it is a small force somewhere in the country be used as a form of riot control; they are not a and they were then stretched; they would call in from suitable form of riot control. Army instructions in the Met or elsewhere. We cannot do that easily in guidance say that they are suitable for public order 3358395006 Page Type [E] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Ev 66 Joint Committee on Human Rights: Evidence
27 March 2006 Rt Hon Adam Ingram MP, Lieutenant General R V Brims CBE DSO and Dr Roger Hutton control. This is an interesting diVerence, and if that and the potentially more lethal, older versions of is the position of the Army, that it has a diVerent plastic bullet, which do not have the compressible approach from the police, does that apply to the nose that the AEPs do have, are being used by your Army serving overseas? troops, perhaps you could tell us under what Mr Ingram: In terms of whether they would use that circumstances they would be used. Would they be equipment overseas, this less than lethal equipment, used after water cannon, with water cannon, there to help to control a situation, the answer to that are no water cannon? Are they used in life- would be yes, clearly they would, because the threatening situations or are they used in routine alternative to using less than lethal equipment is crowd control situations? I think that is the heart of lethal equipment. the question. Mr Ingram: The question is, when would they be Q262 Chairman: The point really is that in the use of deployable? AEPs in Northern Ireland, both by the police and the Army, they were aiming at specific particularly identified targets and firing at a certain part of the Q266 Mary Creagh: Yes. body. The problem is, in relation to the Army Mr Ingram: We would like, if it is possible, write to guidance, whilst that is the practice in Northern you on that. Just on this question of whether the Ireland, the question is, can they be fired rather more plastic baton rounds would be more lethal, they are randomly at crowds, for example, in Basra? potentially more lethal. The General has said that Mr Ingram: I would guess not, and I say this because these AEPs have only recently been deployed. They we would not apply lower standards in that sense may, hopefully, never be deployed again in because people are trained in their use, so you would Northern Ireland. We may not have a body of then have to retrain them into another use or give evidence that tells us the eYcacy of them other than them arbitrary powers. Whether that is written in that small period. They have been developed as a down or not I hesitate to say. result of research. If I could just give you by way of example how this process has changed, again, during Q263 Chairman: We would be interested to know. my time as Security Minister in Northern Ireland, Lieutenant General Brims: AEPs are not employed they could be used where there was a threat to life outside the United Kingdom by the Army, so they and property. That has been a long-standing are on the previous (in layman’s terms) plastic bullet convention in Northern Ireland. With property round. It is controlled by a guidance card which is under threat, there could be circumstances where very similar to what we use anywhere else on they could be used. Now that has changed and that engagements. is within the last eight years.
Chairman: We have had evidence about what happens in Northern Ireland and that the police Q267 Chairman: It is a straightforward question, operate more or less on the same basis in Northern Minister. Do you use rubber bullets or AEPs outside Ireland, although the argument is about exactly the UK? Yes or no? Is there a possibility youare where it is targeted; I think we resolved that. The using plastic bullets or AEPs outside the UK and, if question is, if plastic bullets, AEPs, are deployed so, are the rules of engagement the same as in outside the UK, will exactly the same rules apply to Northern Ireland or not? Three simple questions. their use outside the UK as in Northern Ireland? Mr Ingram: I gave youanswers to that butI will not Lord Judd: In other words, would you use them in answer them in the form of them being bullets Iraq for public order requirements? because they are not bullets.
V Q264 Chairman: No; that is a di erent question. The Q268Chairman: No; we will talk about AEPs, yes? straightforward question is, if AEPs were to be Mr Ingram: Yes. deployed outside the UK, in Iraq or Afghanistan or anywhere else, would the same rules of usage for AEPs apply in those circumstances as apply in Q269 Chairman: What we are unclear about from Northern Ireland? your previous answer is, whilst AEPs are still being Lieutenant General Brims: We would need to know tested, whether somewhere else youare on the old that all the trials with AEPs had been completed in equipment. this country, what the findings were, why we deemed Mr Ingram: We will write to youon that and give it appropriate to use them somewhere else, and so it youa precise answer. is a hypothetical question. I do not know. We would have to examine that on a case by case basis. Q270 Mary Creagh: The final question is about Q265 Mary Creagh: The question that we have is bullying in relation to the incidents and allegations that in Northern Ireland AEPs are only used in around Deepcut barracks. Can you tell us if any situations where people are throwing blast bombs at further consideration is likely to be given to the the police and Army and where other methods of possibility of holding a full public inquiry into riot control failed, so they were only used where life- allegations of bullying at Deepcut following the threatening force was being used by the crowd. publication of Nicholas Blake’s report at the end of Given that yousaid that AEPs are not being used this month? 3358395006 Page Type [O] 22-05-06 22:58:28 Pag Table: COENEW PPSysB Unit: PAG2
Joint Committee on Human Rights: Evidence Ev 67
27 March 2006 Rt Hon Adam Ingram MP, Lieutenant General R V Brims CBE DSO and Dr Roger Hutton
Mr Ingram: We will have to wait and see what conclusions. At the end of the day it is not a matter Nicholas Blake QC reports. I have not seen the for Mr Blake to determine whether there should or report and I am conscious that there was press should not be a public inquiry. That remains a coverage over the weekend. I can say this matter for ministerial decision. We do not pass categorically: Mr Blake has not issued a report; he powers away from ministers to others. He may has not disseminated it. I have not seen it. I will see recommend it; he may not, but we have to wait and it tomorrow because the report was to me and Mr see before we can judge on the back of all of that. Blake will then report both to the families and the public. Under the present plan I intend to make a statement to the House if the House authorities Chairman: Thank youvery much.That is the end of allow that. There will be a full opportunity for that our oral sessions on UK compliance with UNCAT. to be scrutinised as to what he found and his Thank you very much for your evidence. 3358392023 Page Type [SE] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 68 Joint Committee on Human Rights: Evidence Written evidence
1. Response by the United Kingdom to Recommendations by the United Nations Committee against Torture following its Examination of the United Kingdom’s 4th Periodic Report on 17 and 18November 2004 1. On 25 November 2004, following its examination of the United Kingdom’s Fourth Periodic Report under the United Nations Convention Against Torture, the United Nations Committee Against Torture requested the Government of the United Kingdom to provide within one year information in response to its recommendations in paragraph 5, sub paragraphs (d), (e), (f), (g), (h), (i), (j) and (i) of its Concluding Observations on the examination. 2. The response of the United Kingdom Government is set out below. Recommendation 5(d): the State party should appropriately reflect in formal fashion, such as legislative incorporation or by undertaking to Parliament, the Government’s intention as expressed by the delegation not to rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture; the State party should also provide for a means whereby an individual can challenge the legality of any evidence in any proceeding plausibly suspected of having been obtained by torture; 3. United Kingdom law already contains extensive safeguards in relation to evidence obtained by torture. Those safeguards are found in the common law and in the Police and Criminal Evidence Act 1984, and are further guaranteed by the Human Rights Act 1988. 4. Evidence obtained as a result of any acts of torture by British oYcials, or with which British authorities were complicit, would not be admissible in criminal or civil proceedings in the UK. It does not matter whether the evidence was obtained in the UK or abroad. 5. In the light of this, the Government does not consider it necessary to take further measures. 6. This issue arose during the individual appeals to the Special Immigration Appeals Commission (SIAC)—a Superior Court of Record—against certification under powers provided under Part 4 of the Anti-Terrorism, Crime and Security Act (ATCSA). When the UK delegation was examined by the UN Committee against Torture on 17–18 November 2004, it confirmed that it was not the Home Secretary’s intention to rely on, or present to SIAC in relation to the ATCSA Part 4 powers, evidence which he knew or believed to have been obtained by a third country by torture. SIAC emphatically rejected any suggestion that evidence relied upon by the Government was, or even may have been, obtained by torture—or indeed by any inhuman or degrading treatment. This approach was upheld by the Court of Appeal, Lord Justice Laws asserting that it was “plain that there was no evidence in any of the appeals which should have persuaded SIAC that any material relied on by the Secretary of State had in fact been obtained by torture or other treatment in violation of ECHR Article 3. Nor did SIAC think there was.” 7. An appeal against the Court of Appeal’s judgment was heard by the House of Lords, sitting in its judicial capacity, in October 2005. On 8 December the Law Lords reached a unanimous decision on the following three points: — Evidence obtained by use of torture is inadmissible in the appeals against certification under Part 4 of the ATCSA in SIAC. (the application to other SIAC cases or other proceedings is still to be seen); — This “exclusionary rule” did not however extend to evidence obtained by the use of inhuman or degrading treatment; — The burden of proof was not on the Secretary of State to prove that evidence was not obtained by torture. Rather, it was for the appellant, or the special advocates (who represent the appellants in closed proceedings), to raise the issue of torture. If SIAC considers there are reasonable grounds to suspect that torture has been used, it must investigate the issue. 8. Their Lordships ruled (by a majority) that evidence should be admitted unless it is established by means of such diligent inquiries into the sources of the evidence that is practicable to carry out and on a balance of probabilities that the evidence was obtained by torture. If there was doubt as to whether it was obtained by torture, SIAC should admit the evidence, although it should bear this doubt in mind when evaluating the evidence. 9. This decision is welcomed by the Government. It will not change current practices, but it will provide greater legal certainty. The Government has always made it clear that it is not its intention to rely on or present to SIAC evidence which it knows or believes to have been obtained as a result of torture. 10. With regard to the Committee’s recommendation that the Government should “provide for the means whereby an individual can challenge the legality of any evidence in any proceeding plausibly suspected of having been obtained by torture”, the Law Lords ruled that if the appellants or special advocates (who represent the appellants in closed proceedings) raise the issue and SIAC considers there are reasonable grounds to suspect that torture has been used it must investigate the issue and the issue will be considered according to the standards of proof explained above. 11. The individuals formerly certified under the ATCSA Part 4 powers had recourse to a Special Advocate, who had access to all evidence—both open and closed. 3358392001 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 69
12. Although Special Advocates are not able to communicate closed evidence to their clients, they are able to respond to evidence on their clients’ behalf, ensuring that all evidence presented can be contested. The procedures that the Special Advocate has to follow ensure that the interests of the appellant are fairly represented whenever closed material is involved without compromising sources or the interests of national security. 13. The Special Advocate system has received approval from Lord Carlile—the independent reviewer of the Terrorism Act 2000 and the 2005 Act—and from the former Lord Chief Justice, Lord Woolf. Recommendation 5(e): the State party should apply articles 2 and/or 3, as appropriate, to transfers of a detainee within a State party’s custody to the custody whether de facto or de jure of any other State; 14. In so far as this recommendation refers to action by the UK in Iraq and Afghanistan, the UK does not believe that Article 3 of the Convention is applicable to the transfer of detainees from physical custody by the UK in Iraq or Afghanistan to the physical custody of either the Iraqi authorities or the Afghan authorities. Although a detainee may be physically transferred from UK to Iraqi custody, there is no question of expulsion, return (refoulement) or extradition to another State, as referred to in Article 3, all of which include an element of moving a person from the territory of one State to that of another. 15. If UK Forces were involved in wrongdoing, such as prisoner abuse, anywhere in the world, they would be prosecuted under English Law. The UK does not consider that Article 2 requires it to ensure that acts of torture are not committed by persons who are not subject to UK laws, as such an interpretation would be impossible to implement. 16. However, this does not mean the UK Government is not concerned about prisoner treatment. The UK Government has negotiated a Memorandum of Understanding with the Iraqi Government stating that detainees whom the UK Forces hand to the Iraqi authorities shall be treated humanely and not tortured. If the UK had reason to believe that the Iraqi authorities were not complying with this requirement, it would not transfer detainees to the establishment concerned and would take up the matter up with the Iraqi authorities at senior level. In the longer term, the UK believes that a positive engagement with the Iraqi local authorities to improve conditions in places of detention is likely to be the most eVective way of ensuring that standards are raised. To this end, we are taking positive action such as providing training for the Iraqi prison service. 17. The position for Afghanistan is similar. As part of the leadership of the International Security Assistance Force the UK negotiated a Military Technical Agreement with the then Interim Administration of Afghanistan. It recognised that the provision of security and the maintenance of law and order are Afghan responsibilities. That includes the maintenance and support of a recognised Police Force operating in accordance with internationally recognised standards and human rights. 18. Initially in Iraq the UK transferred internees and prisoners of war to US detention facilities but the UK retained responsibility for their welfare as the detaining power in accordance with the Geneva Conventions. In particular, for the period from April to December 2003, when many detainees were held in a US facility at Camp Bucca, in Umm Qasr, a UK Monitoring Team and Prisoner Registration Unit was based at the facility to ensure the welfare of detainees held there. Recommendation 5(f): the State party should make public the result of all investigations into alleged conduct by its forces in Iraq and Afghanistan, particularly those that reveal possible actions in breach of the Convention, and provide for independent review of the conclusions where appropriate; 19. When considering the release of such information into the public domain, the Government has to balance the importance of ensuring accountability of the Armed Forces, with the importance of respecting the rights of potential defendants in criminal proceedings and of protecting the rights of people against whom unfounded allegations are made. 20. Where there is a case to answer, individuals will be prosecuted. The procedure at a court martial is broadly similar to a Crown Court and the proceedings are open to the public. For example, the trials by court martial of British servicemen charged with mistreatment of Iraqi civilians at a humanitarian aid distribution centre near Basra in May 2003 were extensively reported in the Press. Recommendation 5(g): the State party should re-examine its review processes, with a view to strengthening independent periodic assessment of the ongoing justification for emergency provisions of both the Anti- terrorism, Crime and Security Act 2001 and the Terrorism Act 2000, in view of the length of time the relevant emergency provisions have been operating, the factual realities on the ground and the relevant criteria necessary to declare a state of emergency; 21. The Government does not consider that its review processes in relation to its counter-terrorism legislation are deficient, and would like to reassure the Committee on this point by outlining the review procedures in place for the Terrorism Act (TACT) 2000, the Anti-Terrorism, Crime and Security Act (ACTSA) 2001 and the Prevention of Terrorism Act (PTA) 2005. However, the Government would like the Committee to be aware that counter-terrorism legislation in the UK is not reliant on there being a state of emergency. 3358392001 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 70 Joint Committee on Human Rights: Evidence
22. The powers under Part 4 of the ATCSA have been replaced by a system of control orders introduced in the Prevention of Terrorism Act 2005. A detailed account of the new legislation is provided at paragraphs 36 to 44 below. 23. TACT was introduced to provide permanent counter-terrorism legislation. Section 126 of TACT requires the Secretary of State to lay a report before Parliament on the workings of the Act at least once a year. The report is provided by an independent reviewer, currently Lord Carlile of Berriew, following extensive consultation with a wide range of stakeholders—including the law enforcement and security agencies, human rights organisations, representatives from faith communities, the judiciary, and members of the public—on how the powers are used in practice. 24. The security situation in Northern Ireland is kept under constant review by the Secretary of State for Northern Ireland. Although the level of threat does not justify the declaration of a state of emergency, conditions in Northern Ireland require focused legislative provisions. The provisions of Part 7 of the TACT apply only to Northern Ireland and are a proportionate response to the continuing security situation that exists in that part of the UK. The Government recognises the exceptional nature of these provisions and in view of that, the provisions are subject to a comprehensive annual renewal process. 25. The powers provided under Part 7 of TACT are temporary measures. They are valid for five years and have been subject to annual review by Parliament. They are due to expire in February 2006. However under the Terrorism (Northern Ireland) Bill, which is currently undergoing its parliamentary stages, they will be extended for a further 18 months to 31 July 2007. The Independent Reviewer (Lord Carlile) also produces a separate annual report on the Part 7 powers at least once a year. 26. In addition, an international body—the Independent Monitoring Commission (IMC)—prepares a report every six months on the continuing activities of paramilitary groups in Northern Ireland, providing an independent assessment of the continuing terrorist threat. 27. The IMC was established by an international treaty between the UK and the Republic of Ireland. That treaty requires the IMC to be independent in the performance of its functions. Its objective is to report on levels of paramilitary activity and monitor any programme of security normalisation with a view to promoting the transition to a peaceful society and stable and inclusive devolved Government in Northern Ireland. Its reports therefore help to inform debates on the necessity for the temporary provisions, but they are not a requirement for those debates. 28. The treaty states that the IMC must consist of four members, and also sets out how they shall be appointed. Two members, one of whom must be from Northern Ireland, are appointed by the UK Government. One member is appointed by the Irish Government and one member is appointed jointly by the two governments. The fourth member must be a nominee of the Government of the USA. 29. The IMC delivers its reports on paramilitary activity to the governments of the UK and the Republic of Ireland, who publish them simultaneously. 30. It is the Government’s view that this combination of internal and external review provides an adequate independent periodic assessment of the ongoing justification for the Part 7 provisions of the Terrorism Act 2000. 31. Under the Good Friday Agreement, the Government remains committed to the removal of all special provisions when the security situation allows. 32. On 1 August 2005, the Secretary of State for Northern Ireland announced a programme of security normalisation in response to an IRA statement announcing an end to its armed campaign. The security normalisation programme envisages a gradual return to normal arrangements. The provisions contained in Part 7 of TACT are due to be repealed by the end of the normalisation programme. Subject to an enabling environment, the programme is expected to last for two years. Therefore the Terrorism (Northern Ireland) Bill, subject to Parliament approval, will extend the Part 7 provisions for a further 18 months only to 31 July 2007. The Government has taken the view that it would be prudent to make legislative provision in case the security situation does not improve suYciently to allow for the Part 7 provisions to cease to have eVect in July 2007. The Bill therefore makes provision to enable Part 7 to be extended for up to a further 12 months to the 31 July 2008. This would be by an Order of the Secretary of State and would be subject to parliamentary approval. If, after this date, the prevailing security situation required it, a Bill to retain some or all of the anti-terrorist measures that apply specifically to Northern Ireland would be introduced. Recommendation 5(h): the State party should review, as a matter of urgency, the alternatives available to indefinite detention under the Anti-terrorism, Crime and Security Act 2001; 33. For the reasons set out in the UK’s written response to issues raised by the Committee in advance of the 33rd session in November 2004, the Government does not accept that those certified under the Part 4 powers were held in “indefinite detention”. The individuals concerned were held under immigration powers which enabled an individual to be detained because they could not, at that time, be removed from the country. The powers were used sparingly, and there was a wide range of safeguards which protected the rights of the detainees and kept open the prospect of their release. 3358392001 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 71
34. The Government believes that the detention powers were an appropriate response to the public emergency that the UK faced following the events of 11 September 2001. The powers were judged by Parliament to be necessary to protect national security in the United Kingdom. They have been replaced by a system of control orders introduced in the Prevention of Terrorism Act 2005. A detailed account of the new legislation is provided at paragraphs 36 to 44 below. 35. In December 2004 the House of Lords, ruling on an appeal brought by the detainees under the ATCSA, declared that section 23 ATCSA was incompatible with articles 5 and 14 of the European Convention on Human Rights (ECHR) in so far that it was disproportionate and permitted the detention of suspected international terrorists in a way that discriminated on the grounds of nationality or immigration status. Following this ruling, the UK Government acted swiftly to bring forward new legislation—the Prevention of Terrorism Act (PTA) 2005—which became law in March 2005. The PTA repealed sections 21 to 32 of the ATCSA, and introduced a new system of control orders. Subsequently, the UK withdrew its derogations from the ECHR and the ICCPR. 36. Control orders impose one or more obligations upon an individual which are designed to prevent, restrict or disrupt his or her involvement in terrorism-related activity. The legislation is applicable to all individuals regardless of nationality or the terrorist cause they are perceived to espouse. 37. The PTA provides for two types of order: “non-derogating control orders” in which the obligations imposed do not amount to a deprivation of liberty within the meaning of Article 5 ECHR; and “derogating control orders”, which impose obligations that do amount to a deprivation of liberty. The Government has not sought to make any derogating control order nor has it sought a derogation from Article 5 of the ECHR, and it does not for the present time intend to do so. 38. The orders themselves are based on a menuof options that can be employed to tackle particular terrorism activity on a case-by-case basis. This could, for example, include measures ranging from a ban on the use of communications equipment to a restriction on an individual’s movement. This allows for orders to be suited to each individual and therefore to be proportionate to the threat that the individual actually poses. 39. Breach of any of the obligations of the control order without reasonable excuse is a criminal oVence punishable with a prison sentence of up to five years, or a fine, or both. 40. A number of safeguards designed to protect the rights of the individual are contained in the legislation. 41. Firstly, the legislation ensures that for all control orders there is independent judicial scrutiny at an early stage which will involve the hearing of evidence in open and closed session against the imposition of any order or any subsequent variation of an order. The Secretary of State must normally apply to the courts for permission to impose a control order. If the court gives leave and this order is made, the case will then be referred for a judicial review of the decision. In cases where urgent action is required, the Secretary of State may make a provisional order without permission which must then be reviewed by the court within seven days of the order being made. 42. Secondly, control orders themselves are subject to strict time limitations. The maximum duration for a control order is 12 months and a fresh application for renewal has to be made for the re-imposition of restrictive measures. 43. Thirdly, the Act itself will be subject a variety of reviewing and reporting requirements including: — an annual review of the entire Act by an independent reviewer (currently Lord Carlile) who will provide a report to Parliament on the workings of the Act; — requirement on the Home Secretary to report to Parliament every three months on the operation of the powers; — requirement for the Act to be renewed annually by vote in both Houses of Parliament. 44. Prosecution is, and will remain, the government’s preferred way of dealing with terrorists. Priority will continue to be given to prosecution wherever possible, subject to the over-riding need to protect highly sensitive sources and techniques. However, in the absence of the ability to prosecute it is vital that the law enforcement agencies have the ability to act in order to disrupt and prevent further engagement in terrorism- related activity. 45. The Government therefore needs to consider what other actions are appropriate to address the threat. These include deportation and control orders. 46. For each individual it is necessary to choose the appropriate measures to deal with the threat and the specific circumstances. Each case is kept under review and where there is a change in the circumstances or the threat it is possible to determine whether any other action is appropriate. For example deportation becomes an option when previously it was not. 47. Nine individuals who have recently been detained pending deportation had been the subjects of control orders. The control orders have been revoked in these cases since the orders are now no longer necessary to protect members of the public from the risk of terrorism. 3358392001 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 72 Joint Committee on Human Rights: Evidence
48. Deportations will not take place unless the Government is in a position to satisfy UK courts and the European Court in Strasbourg that the deportee’s removal would be consistent with the UK’s international obligations. The Government would not extradite a person where there is a real risk of the death penalty being imposed. Similarly, it would not remove a person under immigration powers where this would lead to treatment contrary to Article 3 of the Convention Against torture or Article 3 of the ECHR. All removal decisions may be appealed to the UK Courts. Recommendation 5 (i): the State party should provide the Committee with details on how many cases of extradition or removal subject to receipt of diplomatic assurances or guarantees have occurred since 11 September 2001, what the State party’s minimum contents are for such assurances or guarantees and what measures of subsequent monitoring it has undertaken in such cases; 49. The UK will remove individuals from the UK only where that is consistent with its international obligations, in particular the 1951 Geneva Convention relating to the status of refugees, the United Nations Convention Against Torture, and the European Convention on Human Rights. This principle applies in all cases, including those in which the UK seeks assurances from the authorities of another country before removal. 50. In certain circumstances, the Government will seek to remove a foreign national from the UK following receipt of assurances from the government of the country to which the person is to be removed regarding the future treatment of that person. Although the Government would only seek to do this in exceptional circumstances, it believes that seeking such assurances is a sensible measure in some cases where the presence of the person in the UK is not conducive to the public good, or where it considers that the person represents a security risk. 51. It is not possible to provide a strict definition of the circumstances in which the Government would seek to obtain assurances, or the exact nature of the assurances required. Each case will be dealt with in line with its particular circumstances and the UK’s legal obligations. However it is possible to outline guidelines for use in assessing each case. 52. As a matter of policy, the UK will not remove someone who would face the death penalty in the country to which he is to be returned. Should a person on removal from the UK face trial on a charge for which the maximum sentence upon conviction is death, the UK Government would not remove the person from the UK without an assurance from the receiving government that, should the person be convicted, any capital sentence would be commuted. 53. Requests for any further assurances will depend upon the country concerned and the exact circumstances of the case, but examples might be: — That, if detained, the individual concerned will receive no ill treatment whilst in detention. — That they will receive a fair trial and public hearing by an independent and impartial judiciary. — That any trial will take place in a civilian court. — That they will be informed promptly and in detail of the nature of the accusations against them. — That they will have adequate time to prepare their defence. — That they should be able to examine, or have examined, witnesses against them, and to obtain the attendance and examination of witnesses on their behalf. 54. Statistics giving the number of asylum seekers removed from the UK under assurances are not centrally recorded, and therefore a definitive figure cannot be given. In 2004, the UK removed two failed asylum seekers to Libya following receipt of assurances regarding the way in which they would be treated. The Government is not aware of any other cases. 55. The UK recognises the desirability of monitoring post-return in cases where assurances have been received, and will seek to provide for independent monitoring where that is considered appropriate. Whether or not assurances were accompanied by monitoring, the UK would only remove where it was satisfied the arrangements were such that removal could take place compatibly with its international obligations. 56. Memoranda of Understanding are currently being sought with a number of countries to which the UK Government wishes to deport foreign nationals it believes are involved in terrorism. In the main, these countries are in North Africa and the Middle East. 57. On 10 August 2005, the Government of the United Kingdom signed a Memorandum of Understanding with the Government of Jordan. That Memorandum provides a framework within which the United Kingdom Government can obtain assurances in relation to the treatment an individual will receive on his return to Jordan. A copy of the Memorandum, and an accompanying side-letter are attached at Annexes 1 and 2. Both are public documents, and have been deposited in the library of the House of Commons. They include the sort of assurances listed in paragraph 50 above. 58. The two Governments are currently discussing monitoring arrangements that would apply under the MoU. The UK believes the key features of monitoring are independence and capacity. 59. A second MoU with Libya was signed on 18 October 2005. A copy of that document and the accompanying side-letter are attached at Annexes 3 and 4. A third MoU was signed with the Lebanon on 23 December 2005. A copy of that is attached at Annex 5. 3358392001 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 73
60. During the course of 2005, deportation action on grounds of national security was commenced against 30 people in respect of whom the UK Government has sought or was proposing to seek assurances. All were initially detained under Immigration Act powers. In six cases, deportation action was subsequently discontinued, and the individuals concerned were released. At the end of the year, the position of the remaining 24 was that three were subsequently remanded in custody facing criminal charges; six had been released on bail; a further three had been granted bail in principle, but remained in detention pending finalisation of the bail conditions; and 12 were still in immigration detention. 61. The detainees have a right of appeal to the Asylum and Immigration Tribunal or the Special Immigration Appeals Commission (SIAC) against a decision to deport them. In the event of an appeal, the appellate body would need to be satisfied, among other things, that removal would be consistent with the United Kingdom’s international obligations. In reaching a decision on that point, SIAC would have regard to any assurances obtained regarding the individual’s treatment following his return. 62. The welfare of any British national extradited to another country following assurances is monitored by the Foreign and Commonwealth OYce (FCO). Such cases fall into two categories: British nationals extradited from the UK; and British nationals extradited from one foreign country to another. 63. Although a significant number of British Nationals have been extradited from the UK since 2001, none has been extradited under assurances. In all cases consular staV aim to contact the extradited person within 24 hours of arrival and to visit them as soon as possible. Usually that is within 48 hours of being given permission to visit, but this varies depending on the distance involved and the prison conditions. Thereafter the frequency of visits depends on the country in which a prisoner is detained and the vulnerability of the prisoner. Standard visiting intervals range from once every four weeks to once every three months. In the EU, North America and Australia, one visit is made after sentencing, and thereafter only if need arises. Vulnerable groups (minors; the elderly; the mentally ill; or prisoners whose oVence or past lives put them at risk) are visited more frequently. 64. All UK consular staV, including locally engaged staV, receive training on human rights issues and prison visiting. They also have access to written guidance on these issues and can contact the Consular Human Rights Adviser, who is a specialist in human rights law seconded into the FCO, for advice on how to proceed in any particular case. All FCO ministers are updated on key cases fortnightly. 65. The number of British nationals extradited from one foreign country to another is small. In some cases, the UK Government would wish to see assurances before a British national is extradited. Since 2004 there has been only one third-country extradition involving assurances (from Australia to Singapore) and it involved the death penalty. In this case Australia received an assurance from the Government of Singapore which the UK considered to be adequate. 66. Since Her Majesty’s Government has no formal role in such cases, where appropriate, the FCO assigns a lawyer from its pro bono panel to work with a local lawyer to raise human rights concerns in court. The UK government will also consider making representations to the extraditing country to request that assurances similar to those outlined at paragraph 54 above are obtained. 67. In all cases, the UK Government would require written assurances, given by someone it judges suYciently senior to be able to control the treatment of the British national. 68. Following an extradition, the UK government would expect to deal with British nationals in the same way as others extradited from the UK. No British national has been extradited from a third country on assurances related to torture in recent years, but a number have been extradited on assurances relating to the death penalty. 69. In line with the Foreign Secretary’s formal statement in the House of Commons at the beginning of 2005, the UK government will always intervene where a British national may be extradited from a third country for an oVence carrying the death penalty, even where the state considering the extradition request is another abolitionist state. But representations will, of course, be less formal in these cases. Recommendation 5(j): the State party should ensure that the conduct of its oYcials, including those attending interrogations at any overseas facility, is strictly in conformity with the requirements of the Convention and that any breaches of the Convention that it becomes aware of should be investigated promptly and impartially, and if necessary the State party should file criminal proceedings in an appropriate jurisdiction; 70. The UK Government has procedures in place, in line with this recommendation, to ensure that the conduct of its oYcials, including those conducting interviews at any overseas facility, is strictly in conformity with both domestic and international law, including the Human Rights Act, the UN Convention Against Torture, and where applicable the Geneva Conventions. 71. All UK oYcials are made aware that torture is prohibited in all circumstances. Furthermore, all UK personnel are instructed to report immediately to their superiors any activities carried out by UK personnel or those of any allies with whom they are operating that could be seen as torture or other cruel, inhuman or degrading treatment. Where such cases arise, the relevant Government Department would provide guidance on the appropriate action and ensure that concerns are reported to the relevant authorities, including Ministers and other Government Departments. 3358392001 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 74 Joint Committee on Human Rights: Evidence
72. All allegations or suspicions involving activity of a criminal nature, including any apparent breaches of the Convention’s prohibitions on torture, and cruel, inhuman and degrading treatment by UK oYcials, are taken seriously and investigated promptly and impartially. At all times, whether in the UK or overseas, UK oYcials are subject to English criminal law. They can therefore be subject to criminal proceedings for acts of torture, or cruel, inhuman or degrading treatment. For example, following allegations of mistreatment of Iraqi civilians by British armed forces at a humanitarian aid distribution centre near Basra in May 2003 three British servicemen were tried and convicted by court martial in February 2005. 73. Additionally, if British consular staV receive allegations that a British national has been mistreated by foreign authorities while in detention overseas, they are advised to raise these allegations with the Government concerned, taking into account the circumstances of the case. This is normally done by requesting that the detaining authorities undertake a prompt and impartial investigation and, where relevant, attention is drawn to the particular State’s international obligations under the Convention. 74. During the oral examination of the UK’s fourth periodic report, the UK delegation reported that the UK Parliamentary Committee on Intelligence and Security (ISC) were taking evidence on the issue of the handling of detainees by UK intelligence personnel. The ISC has since produced a comprehensive report on this subject, which included five recommendations, three of which relate to the Committee’s Concluding Observations. The Committee may be interested to see the UK Government’s response to the ISC, which is at Annex 6 to this document. Recommendation 5(l): the State party should develop an urgent action plan, including appropriate resort to criminal sanctions, to address the subjects of concern raised by the Committee in paragraph 4(g) as well as take appropriate gender-sensitive measures; 75. The UK Government has given careful consideration to this recommendation. However it does not believe that the development of a large-scale, overarching plan such as the Committee appears to be recommending would be helpful in the general development of its custodial policy, or in dealing with the specific subjects identified by the Committee. In the Government’s opinion, such a plan would be unwieldy and excessively diYcult to co-ordinate and monitor. Individual Government Departments and the Devolved Administrations have already developed plans to address the subjects identified by the Committee, and the government believes that these are suitable and suYcient to bring about necessary improvements.
Deaths in Custody
76. Her Majesty’s Prison Service for England and Wales (HMPS) has developed a strategy endorsed by Ministers to reduce the numbers of self-inflicted deaths in custody. 77. Deaths in custody are subject to a range of scrutinies: a Police Investigation; a Prisons and Probation Ombudsman (PPO) investigation; and a Coroner’s inquest (held before a jury). In cases of deaths of young persons aged 15–17, a “serious case review” is carried out under Part 8 of the interdepartmental strategy “Working Together to Safeguard Children” (a copy of which is at Annex 7 to this document. 78. The following tables show comparisons for self-inflicted deaths in prisons in England and Wales from 1 January 2004 to 7 August 2005. The first shows total figures; the second shows figures for the same period within each year.
Gender 1 January 2004 to 1 January 2005 to 31 December 2004 7 August 2005 Male 82 49 Female 13 2 Total 95 51
Gender 1 January 2004 to 1 January 2005 to 7 August 2004 7 August 2005 Male 48 49 Female 11 2 Total 59 51
79. In Scottish Prisons, there were 19 deaths between April 2003 and April 2004, 19 deaths between April 2004 and April 2005, and 11 deaths between April 2005 and August 2005. The number of deaths in Scottish prisons has remained relatively static since 2000. However, against a background of an increasing prison population, the number of deaths has fallen as a proportion of the total number of prisoners. Figures for the last twelve years are given in the table below. 3358392001 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 75
Period (Commencing Number of April each year) deaths 1994–95 26 1995–96 17 1996–97 27 1997–98 19 1998–99 21 1999–2000 26 2000–01 16 2001–02 18 2002–03 16 2003–04 19 2004–05 19 April 2005– 11 August 2005
80. In Northern Ireland, following the death in custody of a female prisoner in March 2004, the Director General of the Prison Service and the Chief Medical OYcer commissioned a review of the six unnatural deaths in Northern Ireland Prison Service establishments between June 2002 and March 2004. An independent review group was set up in May 2004 chaired by Professor Roy McClelland, formally Professor of Psychiatry at Queen’s University, Belfast, Northern Ireland. The terms of reference were to review healthcare and mental health provision to vulnerable prisoners particularly in the cases under scrutiny; to review communications between healthcare and other areas within prisons; and to examine the nature and eVectiveness of healthcare services. The report and an action plan to address the 30 recommendations listed in the report were published on 23 January 2006. The report is attached at Annex 8. 81. In addition, the Northern Ireland Prison Service (NIPS) has asked the independent Prisoner Ombudsman to investigate all deaths in custody with eVect from 1 September 2005. His reports will be published and made available to the Coroner. NIPS is committed to transparency and openness and welcomes the Prisoner Ombudsman’s role as a further means of demonstrating this commitment. 82. A suicide and self-harm policy was introduced in March 2004. This is being updated to take account of the recommendations of the McClelland Report and also the findings of recent inspection reports.
Inter-prisoner violence 83. HMPS has a well-established violence reduction strategy and is committed to making prisoners feel safe within prisons in England and Wales. Since 2004 it has been mandatory for each prison to develop a strategy to reduce violence. This includes measures to reduce verbal abuse and bullying as well as physical assault. The following table gives a summary of the number of serious assaults in the last two financial years. In each of these years there was one homicide.
Type of Assault 2004–05 2003–04 Inmate on inmate 814 809 Others (eg on visitors, 3 20 workmen) Inmate on staV 188 197 Sexual 136 127 Total assaults 1,141 1,153 Population 74,754 73,679 Assault rate 1.53% 1.56%
84. In Scotland between January 2004 and July 2005, there were 127 serious prisoner on prisoner assaults and eight serious assaults on Prison StaV. The overall trend of violence in Scottish Prisons is down, despite an increased population. 85. In Northern Ireland following serious disturbances at Maghaberry Prison, the then Secretary of State commissioned a review of staV and prisoner safety in August 2003. The review was led by John Steele, a former head of the Northern Ireland Prison Service. His report in September of that year recommended voluntary separation, for safety reasons, of prisoners with paramilitaryaYliations from each other and from the rest of the prison population. Government’s acceptance of the Report led to the development of a “Compact” for separated prisoners, which was published following a period of public consultation. Loyalist and Republican prisoners were transferred to separated conditions in Bush and Roe Houses at Maghaberry Prison in March 2004. The Northern Ireland Prison Service carried out an internal review of the Compact and the regime and this was published for consultation on 31 January 2006 (The Review and 3358392001 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 76 Joint Committee on Human Rights: Evidence
its associated consultation document are attached at Annexes 9 and 10). Prisoners within the separated regime and staV at Maghaberry Prison were invited to submit written comments. In addition the prisoners’ representative groups were invited to submit their views. 86. The NI Prison Service has safer custody arrangements in place in all Establishments, including policies on anti-bullying and suicide and self-harm and robust measures for the assessment of risk. Further work is ongoing to address concerns highlighted in recent CJINI/HMCIP inspection reports. 87. The Northern Ireland Prison Service Management Board has key targets, which are published in the Prison Service Corporate and Business Plan and are approved by the Minister. The 2005–06 target for inter prisoner violence is that the number of prisoners assaulted by prisoners should be fewer than four assaults per 100 prisoners. The forecast result for 2005–06 is 0.4 assaults per 100 prisoners. The Service met the 2004–05 target of six assaults per 100 prisoners with final result of 0.9 assaults per 100 prisoners.
Overcrowding 88. In England and Wales, The prison population is managed within agreed operating capacities at each establishment. These are determined by Area Managers based on the total number of prisoners an establishment can hold without serious risk to good order, security and the proper operation of the planned regime. 89. Population pressures can result in greater numbers of prisoners being required to share cells certified for single occupancy. However, it may sometimes be preferable that prisoners share cells—for example, to help care for those who may be at risk of self-harm. All prisoner accommodation is certified by Area Managers, in accordance with the performance standard on prisoner accommodation, which provides clear guidelines for determining cell capacities. 90. The impact of population pressures, including “overcrowding” in all prisons, is kept under careful review. The Government is responding to the changing prison population by: — expanding capacity; — reforming the correctional services, with the creation of The National OVender Manager Service (NOMS), to help balance demand with capacity; — providing, including via provisions in the Criminal Justice Act 2003, more eVective options for sentencers, with eVective and demanding community penalties. 91. Since 1997, nine new private sector prisons have been opened in England and Wales, providing around 7,500 places, and the capacity of the public sector prison estate has increased by around 11,000 additional places at existing prisons. The Government continues to investigate options for providing further increases in capacity over the coming years. 92. In May 2004 the Scottish Minister for Justice announced a package of measures to accelerate improvement in prison conditions in Scotland, to reduce overcrowding and make eVective use of custody. The Scottish Executive is spending £1.5 million per week on a phased programme to improve the existing prison estate. Around 500 modern places have been created in two new houseblocks at Edinburgh and Polmont, and work is continuing on two more at Edinburgh and Glenochil. Two new prisons are under construction, which will further reduce overcrowding by providing 1,400 modern places.
Slopping Out 93. In 1996 Ministers announced that slopping out had ceased in England and Wales. All prisoners in normal accommodation have had access to sanitation since then in one of four ways: — Integral sanitation: a toilet and wash basin installed in a cell or in a separate annexe; — Open access: in open conditions prisoners can leave their rooms and use central toilet facilities; — Electronic unlocking: cell doors are opened electronically to allow prisoners access to toilet facilities; — Manual unlocking: staV are deployed to un-lock cells and allow prisoners access to toilet facilities. 94. Integral sanitation is installed at most prisons, but eleven have electronic unlocking systems in all or part of the establishment, and one prison uses manual unlocking for night sanitation on one of its wings. 95. Across the Scottish prison estate, slopping out has been substantially reduced in recent years. Since 2000, the number of prisoners slopping out has fallen from 1,900 to 1,000. By 2006 this figure will be reduced to 450. Slopping out at HMP Barlinnie ended in July 2004. It ended this summer at HMP Edinburgh and at HMP Perth. It will end at Polmont by the end of 2006. Since February 2005, no prisoner in Scotland has been required to share accommodation that does not have integral sanitation or access to night sanitation. Slopping out will end in Scotland about a year after the second of the two new prisons opens (see paragraph 86 above). The exact date will depend on getting appropriate planning consent and other related factors. 96. The Northern Ireland Prison Service has taken steps to facilitate access to toilets In Northern Ireland, at both Hydebank Wood and Magilligan, an electronic unlock system is in operation in houses that do not have access to in-cell sanitation. During lock-up periods, prisoners can be unlocked one-by-one when they wish to leave their cells to use the toilet facilities. At Hydebank Wood, NIPS is extending the provision of 3358392001 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 77
in-cell sanitation throughout the establishment. The redevelopment of Magilligan prison is being considered as part of the Service’s ongoing Strategic Development programme. However, measures have been taken to improve existing arrangements to minimise any interference with the human rights of prisoners. 97. In a recent judicial review decision concerning a female prisoner at Hydebank Wood, who claimed that the lack of in-cell sanitation breached Article 8 (right to private and family life) of the European Convention on Human Rights, the court found that, on the basis of the evidence given, the facilities were adequate and took account of the prisoner’s rights under Article 8.1 of the ECHR. However, as mentioned above, integral sanitation is now being installed throughout Hydebank Wood Young OVenders Centre and Prison. 98. A recent Judgment from Lord Justice Girvan in the case of a former prisoner, found in favour of NIPS in respect of Article 3 (Prohibition of Torture). However, Lord Justice Girvan found NIPS to be in breach of Article 8 (Right to respect for private and family life). He found that although the lack of in-cell sanitation does not in itself establish a lack of respect for the prisoner’s privacy rights under Article 8, if the absence of such a facility is not properly managed and handled with care, it has the potential to be significantly demeaning to a prisoner in an intimate aspect of his private life. A Working Group has been set up to take forward the implementation of the outcomes identified and to examine the Human Rights implications of current arrangements.
Hydebank Wood Young Offenders’Centre and Prison 99. The Criminal Justice Inspector for Northern Ireland, Kit Chivers, and HM Inspector of Prisons, Anne Owers, carried out an unannounced inspection of Ash House (female prisoners), Hydebank Wood Young OVenders Centre and Prison in November 2004. The Inspection report was published on 16 May 2005 and is attached at Annex 11. 100. Since then, the Service has been addressing rigorously the concerns that have been raised in relation to conditions for women prisoners. A detailed action plan (attached at Annex 12) has been drawn up and published. This is updated regularly and significant progress has been made. 101. Plans for the treatment of women in custody are being developed strategically, including various reviews (of re-integration, health, oVending behaviour etc) and the development of gender specific programmes and policies, such as: — Mother and baby; — Suicide and self-harm; — Child protection/public protection; — Resettlement; — Anti-bullying; — Induction; — First night; — Drugs and alcohol; — Foreign nationals; — Diversity. 102. Ash House now has a distinct gender specific identity, supported by a discreet management structure: — A Northern Ireland Prison Service female Governor dedicated to the management of female prisoners is now in place; — A female Governor, on secondment from HMPS, was appointed on 20 June 2005 to lead the development of the regime for Ash House. 103. Women prisoners have access to a full range of education, work and rehabilitative programmes specifically linked to the skills requirements of women prisoners, and which should enhance their prospects of acquiring employment upon release from custody. They also have access to a working out scheme. 104. The ratio of prison staV working with female prisoners is now 75% female and 25% male and prisoners have access to women staV at any time. Ash House prison staV are currently undergoing training designed to help them develop further their management of women prisoners. Training has already been delivered in issues such as working with vulnerable females, suicide awareness, mental health awareness, the management of aggression and dealing with mothers and babies. 20 April 2006 3358392002 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 78 Joint Committee on Human Rights: Evidence
Annex 1
MEMORANDUM OF UNDERSTANDING BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF THE HASHEMITE KINGDOM OF JORDAN REGULATING THE PROVISION OF UNDERTAKINGS IN RESPECT OF SPECIFIED PERSONS PRIOR TO DEPORTATION
Application and Scope This arrangement will apply to any person accepted by the receiving state for admission to its territory following a written request by the sending state under the terms of this arrangement. Such a request may be made in respect of any citizen of the receiving state who is to be returned to that country by the sending state on the grounds that he is not entitled, or is no longer entitled, to remain in the sending state according to the immigration laws of that state. Requests under this arrangement will be submitted in writing either by the British Embassy in Amman to the Ministry of the Interior or by the Jordanian Embassy in London to the Home OYce. Where a request is made under the terms of this arrangement, the department to which it is made will acknowledge receipt of the request within 5 working days. A response to a request under the terms of this arrangement may be given verbally, but must be confirmed in writing within 14 days by the Home Secretary, in the case of a request made to the United Kingdom, or by the Minister of Interior in the case of a request made to the Hashemite Kingdom of Jordan before any return can take place. To enable a decision to be made on whether or not to return a person under this arrangement, the receiving state will inform the sending state of any penalties outstanding against the subject of a request, and of any outstanding convictions or criminal charges pending against him and the penalties which could be imposed. Requests under this arrangement may include requests for further specific assurances by the receiving state if appropriate in an individual case.
Understandings It is understood that the authorities of the United Kingdom and of Jordan will comply with their human rights obligations under international law regarding a person returned under this arrangement. Where someone has been accepted under the terms of this arrangement, the conditions set out in the following paragraphs (numbered 1–8) will apply, together with any further specific assurances provided by the receiving state. 1. If arrested, detained or imprisoned following his return, a returned person will be aVorded adequate accommodation, nourishment, and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards. 2. A returned person who is arrested or detained will be brought promptly before a judge or other oYcer authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided. 3. A returned person who is arrested or detained will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. 4. If the returned person is arrested, detained or imprisoned within three years of the date of his return, he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities. Such visits will be permitted at least once a fortnight, and whether or not the returned person has been convicted, and will include the opportunity for private interviews with the returned person. The nominated body will give a report of its visits to the authorities of the sending state. 5. Except where the returned person is arrested, detained or imprisoned, the receiving state will not impede, limit, restrict or otherwise prevent access by a returned person to the consular posts of the sending state during normal working hours. However, the receiving state is not obliged to facilitate such access by providing transport free of charge or at discounted rates. 6. A returned person will be allowed to follow his religious observance following his return, including while under arrest, or while detained or imprisoned. 7. A returned person who is charged with an oVence following his return will receive a fair and public hearing without undue delay by a competent, independent and impartial tribunal established by law. Judgment will be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 3358392002 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 79
8. A returned person who is charged with an oVence following his return will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not suYcient means to pay for legal assistance, to be given it free when the interests of justice so require.
Withdrawal Either government may withdraw from this arrangement by giving six months notice in writing to the Embassy of the other government. Where one or other government withdraws from the arrangement, the terms of this arrangement will continue to apply to anyone who has been returned in accordance with its provisions.
Signature This Memorandum of Understanding represents the understandings reached between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Hashemite Kingdom of Jordan upon the matters referred to therein. Signed in duplicate at Amman on 10 August 2005 in the English and Arabic languages, both texts having equal validity.
For the Government of the For the Government of the United Kingdom of Great Britain Hashemite Kingdom of Jordan and Northern Ireland
Annex 2
LETTER FROM BRITISH EMBASSY AMMAN JORDAN TO HE MR AWNI YERVAS, MINISTER OF INTERIOR, AMMAN Today we have signed a Memorandum of Understanding (MOU) on behalf of our two Governments regulating the provision of undertakings in respect of persons prior to deportation. Signature of the MOU reflects the British Government’s strong wish to strengthen co-operation with the Government of Jordan to counter the threat of international terrorism. The content of the MOU also reflects the British Government’s intention to respect its international and domestic human rights obligations and responsibilities and Jordanian law and sovereignty. During our discussions on the MOU we agreed that it would be right to exchange letters on the use of the death penalty on which, for constitutional reasons, the Government of Jordan has been unable to give an undertaking in the MOU itself. This letter, and the Government of Jordan’s formal response to it, set out the joint understanding of our two Governments on this issue. The British Government is opposed to the use of the death penalty in all circumstances. We would not return a person to Jordan if that person faced significant risk of the death penalty on return. If a person returned to Jordan is, at any time after his return, subsequently sentenced to death, the British Government would consider asking the Jordanian Government to commute the sentence. The Government of Jordan has indicated that it would be open to the Government of Jordan to give a specific assurance in relation to a particular case. Such specific assurances being sought by either Government is recognised in the MOU itself (7th paragraph under application and scope). The British Government records here that it may well seek a specific assurance on this issue in relation to particular cases. In our discussions, both Governments have recognised the vital importance of appointing independent bodies capable of monitoring the execution of the undertakings given under the MOU, including any specific assurances given in particular cases. Our discussions continue on the identity and specific terms of reference of these bodies. The MOU requires the two Governments to consult closely on the circumstances and identity of those who might be subject to its provisions. The British Government attaches considerable importance to maximum transparency and timely consultation. The MOU also provides for the two Governments to seek assurances specific to individual cases, in addition to the issue of the death penalty described in this letter. The British Government considers this provision an important means of meeting the counter-terrorism and human rights objectives which underpin the MOU. Pat Phillips Charge´ d’AVaires a.i. 10 August 2005 3358392004 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 80 Joint Committee on Human Rights: Evidence
Annex 3 MEMORANDUM OF UNDERSTANDING BETWEEN THE GENERAL PEOPLE’S COMMITTEE FOR FOREIGN LIAISON AND INTERNATIONAL CO-OPERATION OF THE GREAT SOCIALIST PEOPLE’S LIBYAN ARAB JAMAHIRIYA AND THE FOREIGN AND COMMONWEALTH OFFICE OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND CONCERNING THE PROVISION OF ASSURANCES IN RESPECT OF PERSONS SUBJECT TO DEPORTATION Application and Scope A request for assurances under this Memorandum may be made by the sending state in respect of any citizen of the receiving state, any stateless person who was habitually resident in the receiving state, or any third-country national whom the receiving state is prepared to admit. Such requests will be submitted in writing either by the British Embassy in Tripoli to the General People’s Committee for Foreign Liaison and International Co-operation or by the People’s Bureau of the Great Socialist People’s Libyan Arab Jamahiriya in London to the Foreign and Commonwealth OYce. The state to which the request is made will acknowledge receipt of the request within 5 working days. A final response to a such a request will be given promptly in writing by the Foreign Secretary in the case of a request made to the United Kingdom, or by the Secretary of the General People’s Committee for Foreign Liaison and International Co-operation in the case of a request made to Libya. To assist a decision on whether to request assurances under this Memorandum, the receiving state will inform the sending state of any penalties outstanding against a person to be deported, and of any outstanding convictions or criminal charges pending against him and the penalties which could be imposed. Requests under this Memorandum may include requests to the receiving state for further specific assurances. It will be for the receiving state to decide whether to give such further assurances. The United Kingdom and the Great Socialist People’s Libyan Arab Jamahiriya will comply with their human rights obligations under international law regarding a person in respect of whom assurances are given under this Memorandum. The assurances set out in the following paragraphs (numbered 1–9) will apply to such a person, together with any further specific assurances provided by the receiving state. An independent body (“the monitoring body”) will be nominated by both sides to monitor the implementation of the assurances given under this Memorandum, including any specific assurances, by the receiving state. The responsibilities of the monitoring body will include monitoring the return of, and any detention, trial or imprisonment of, the person. The monitoring body will report to both sides. Assurances 1. Where, before his deportation, a person has been tried and convicted of anoVence in the receiving state in absentia, he will be entitled to a re-trial for that oVence on his return. 2. In cases where the person may face the death penalty in the receiving state, the receiving state will, if its laws allow, provide a specific assurance that the death penalty will not be carried out. In any case, where there are outstanding charges, or where charges are subsequently brought, against the person in respect of an oVence allegedly committed before his deportation, the authorities of the receiving state will utilise all the powers available to them under their system for the administration of justice to ensure that, if the death penalty is imposed, the sentence will not be carried out. 3. If arrested, detained or imprisoned following his deportation, the deported person will be aVorded adequate accommodation, nourishment, and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards. 4. If the deported person is arrested or detained, he will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. The person will be entitled to consult a lawyer promptly. 5. If the deported person is arrested or detained, he will be brought promptly before a civilian judge or other civilian oYcial authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided. 6. The deported person will have unimpeded access to the monitoring body unless they are arrested, detained or imprisoned. If the person is arrested, detained or imprisoned, he will be entitled to contact promptly a representative of the monitoring body and to meet a representative of the monitoring body within one week of his arrest, detention or imprisonment. Thereafter he will be entitled to regular visits from a representative of the monitoring body in co-ordination with the competent legal authorities. Such visits will include the opportunity for private interviews with the person and, during any period before trial, will be permitted at least once every three weeks. If the representative of the monitoring body considers a medical examination of the person is necessary, he will be entitled to arrange for one or to ask the authorities of the receiving state to do so. 7. The deported person will be allowed to follow his religious observance following his return, including while under arrest, or while detained or imprisoned. 3358392004 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 81
8. If the deported person is charged with an oVence he will receive a fair and public hearing without undue delay by a competent, independent and impartial civilian court established by law. The person will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not suYcient means to pay for legal assistance, to be given it free when the interests of justice so require. 9. Any judgement against the deported person will be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Withdrawal Either participant may withdraw from this Memorandum by giving six months notice in writing to the diplomatic mission of the other. Where one or other participant withdraws from the Memorandum any assurances given under it in respect of a person will continue to apply in accordance with its provisions.
Signature This Memorandum of Understanding represents the understandings reached upon the matters referred to therein between the Great Socialist People’s Libyan Arab Jamahiriya and the United Kingdom of Great Britain and Northern Ireland. Signed in duplicate at Tripoli on 18 October 2005 in the English and Arabic languages, both texts having equal validity.
Anthony Layden HM Ambassador British Embassy, Tripoli For the United Kingdom of Great Britain and Northern Ireland
Abdulati Ibrahim Obeidi, Acting Secretary for European AVairs, Secretariat for Foreign Liaison and International Co-operation, Tripoli. For the Great Socialist People’s Libyan Arab Jamahiriya
Annex 4
LETTER FROM THE AMBASSADOR, BRITISH EMBASSY, TRIPOLI TO AMBASSADOR ABDULATI IBRAHIM AL-OBIDI, ACTING SECRETARY FOR EUROPEAN AFFAIRS, SECRETARIAT FOR FOREIGN LIAISON AND INTERNATIONAL CO-OPERATION TRIPOLI
Your Excellency Today we have signed a Memorandum of Understanding (MOU) on behalf of our two Governments regulating the provision of undertakings in respect of persons prior to deportation. Signature of the MOU reflects the British Government’s strong wish to strengthen co-operation with the Great Socialist People’s Libyan Arab Jamahiriya to counter the threat of international terrorism. The content of the MOU also reflects the British Government’s intention to respect its international and domestic human rights obligations and responsibilities and Libyan law and sovereignty. The MOU and this letter set out the joint understanding of our two Governments on the death penalty. The MOU specifies that in cases where the deported person may face the death penalty in the receiving state, the receiving state will, if its laws allow, provide a specific assurance that the death penalty will not be carried out. In any case, where there are outstanding charges or charges are subsequently brought, against the deported person in respect of an oVence allegedly committed before his deportation, the authorities of the receiving state will utilise all the powers available to them under their system for the administration of justice to ensure that, if the death penalty is imposed, the sentence will not be carried out. During our discussions on the MOU we explained the British Government’s policy on the death penalty. This letter re-aYrms that position. The British Government is opposed to the use of the death penalty in all circumstances. We would not return a person to the Great Socialist People’s Libyan Arab Jamahiriya if that person faced significant risk of the death penalty on return. If a person returned to the Great Socialist 3358392005 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 82 Joint Committee on Human Rights: Evidence
People’s Libyan Arab Jamahiriya is, at any time after his return, subsequently sentenced to death, the British Government would consider asking the Great Socialist People’s Libyan Arab Jamahiriya to commute the sentence. In our discussions, both Governments have recognised the vital importance of appointing independent bodies capable of monitoring the execution of the undertakings given under the MOU, including any specific assurances given in particular cases. Our discussions continue on the identity and specific terms of reference of these bodies. The MOU requires the two Governments to consult closely on the circumstances and identity of those who might be subject to its provisions. The British Government attaches considerable importance to maximum transparency and timely consultation. The MOU also provides for the two Governments to seek assurances specific to individual cases, in addition to the issue of the death penalty described in this letter. The British Government considers this provision an important means of meeting the counter-terrorism and human rights objectives that underpin the MOU. Yours sincerely, Anthony Layden 18 October 2005
Annex 5
MEMORANDUM OF UNDERSTANDING BETWEEN THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND THE GOVERNMENT OF THE LEBANESE REPUBLIC CONCERNING THE PROVISION OF ASSURANCES IN RESPECT OF PERSONS SUBJECT DEPORTATION
Application and Scope A request for assurances under this Memorandum may be made by the sending state in respect of any citizen of the receiving state, any stateless person who was habitually resident in the receiving state, or any third-country national whom the receiving state is prepared to admit. Such requests will be submitted in writing either by the British Embassy in Beirut to the Ministry of the Interior or by the Lebanese Embassy in London to the Home OYce. The Government to which the request is made will acknowledge receipt of the request within 5 working days. A final response to a such a request will be given promptly in writing by the Home Secretary in the case of a request made to the United Kingdom, or by the Minister of Justice in the case of a request made to Lebanon. To assist a decision on whether to request assurances under this Memorandum, the receiving state will inform the sending state of any penalties outstanding against a person, and of any outstanding convictions or criminal charges pending against him and the penalties which could be imposed. Requests under this Memorandum may include requests to the receiving state for further specific assurances. The Governments of the United Kingdom and of the Lebanese Republic will comply with their human rights obligations under international law regarding a person in respect of whom assurances are given under this Memorandum. The assurances set out in the following paragraphs (numbered 1–7) will apply to such a person, together with any further specific assurances provided by the receiving state. An independent body will be nominated by both Governments to monitor the implementation of the assurances given under this Memorandum, including any specific assurances, by the receiving state (“the monitoring body”). The responsibilities of the monitoring body will include, but are not limited to, monitoring the return of, and any detention, trial or imprisonment of, the person. The monitoring body will report to both Governments.
Assurances 1. If arrested, detained or imprisoned following his deportation, the person will be aVorded adequate accommodation, nourishment, and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards. 2. If the person is arrested or detained, he will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. The person will be entitled to consult a lawyer promptly. 3. If the person is arrested or detained, he will be brought promptly before a judge or other oYcial authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided. 3358392006 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 83
4. The person will have unimpeded access to the monitoring body for three years after his return except at any time when he is arrested, detained or imprisoned. If the person is arrested, detained or imprisoned in respect of matters occurring before or within three years after the date of his return, he will be entitled to contact promptly, and in any event within 48 hours, a representative of the monitoring body. Thereafter he will be entitled to regular visits from a representative of the monitoring body. Such visits will include the opportunity for private interviews with the person and, during any period before trial, will be permitted at least once a week. If the representative of the monitoring body considers a medical examination of the person is necessary, he will be entitled to arrange for one or to ask the authorities of the receiving state to do so. 5. The person will be allowed to follow his religious observance following his return, including while under arrest, or while detained or imprisoned. 6. If the person is charged with an oVence he will receive a fair and public hearing without undue delay by a competent, independent and impartial tribunal, properly constituted by law. The person will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not suYcient means to pay for legal assistance, to be given it free when the interests of justice so require. 7. Any judgment against the person will be pronounced publicly, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Withdrawal Either Government may withdraw from this Memorandum by giving six months notice in writing to the Embassy of the other government. Where one or other Government withdraws from the Memorandum any assurances given under it in respect of a person will continue to apply in accordance with its provisions.
Signature This Memorandum of Understanding represents the understandings reached between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Lebanese Republic upon the matters referred to therein. Signed in duplicate at Beirut on 23 December 2005 in the English and Arabic languages, both texts having equal validity.
For the Government of the For the Government of the United Kingdom of Great Britain Lebanese Republic and Northern Ireland
2. Letter from the Chair to Rt Hon Harriet Harman QC MP, Minister of State for Constitutional AVairs, Department for Constitutional AVairs
Inquiry into Compliance with the Convention Against Torture
Thank youfor providing oral evidence to the Joint Committee on HumanRight s last week as part of its inquiry into compliance with the UN Convention Against Torture. We are grateful for your undertaking to reply in writing to several questions which we did not have time to address in the course of that session. In particular, we would be grateful for your views on certain matters relating to the use of evidence obtained by torture; co-operation with interrogations abroad; the applicability of UNCAT to UK forces abroad; and the Optional Protocol to UNCAT. We would also be grateful for updated information on investigations into extraordinary renditions. 3358392007 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 84 Joint Committee on Human Rights: Evidence
Use of Evidence Obtained by Torture In December, the House of Lords delivered judgment in A (FC) v Secretary of State for the Home Department1 in which detainees held under the Anti-terrorism Crime and Security Act, challenging their detention before the Special Immigration Appeals Commission (SIAC), alleged that evidence presented against them had been obtained through the use of torture by oYcials of foreign states, acting outside of the UK. The House of Lords held that any evidence established to have been obtained by torture is inadmissible. The test adopted by the majority in the House of Lords requires that, where the issue of foreign torture evidence is raised before SIAC, it has a duty to inquire into the matter. Evidence found on the balance of probabilities to be the product of torture abroad must be excluded. Where there are lesser doubts about whether the evidence is tainted, it is admissible, but may in practice be accorded less weight by the court. For the SIAC investigation into the provenance of evidence to aVord real protection, it will often be the case that the Government and its agencies must undertake some inquiry into how the particular evidence was obtained.
1. Can you confirm to us that the Government will not seek to rely in legal proceedings on evidence which it has reason to believe may have been obtained by torture by foreign agents acting abroad?
2. Following the House of Lords judgment, will additional steps now be taken by Government to determine the provenance of information from foreign intelligence agencies?
3. Do you accept that it is not enough for Government agencies to accept at face value interrogation information from states known to use torture?
Co-operation with Interrogations Abroad In her witness statement before the House of Lords in the case of A v Secretary of State for the Home Department, Ms Manningham-Buller states that in at least one case, that of Mohammed Meguerba, the UK authorities provided questions to the Algerian authorities to put to the detainee in Algerian custody. She states that “because of the potential importance of what he was saying, British police oYcers sought direct access to him, but that was not permitted by the Algerian authorities. Instead, questions were provided to the judicial authorities in Algeria through a formal letter of request, and Meguerba was formally examined on them at length by the Chief Examining Magistrate in Algiers.”
4. How can you be assured that such close involvement in an interrogation in a State known to use torture, does not make UK oYcials complicit in crimes of torture?
5. What procedures are in place to ensure that all UK personnel report immediately any activities, including acts by foreign interrogators, which could breach the Torture Convention? Are you satisfied that British oYcials present at Guantanamo Bay have complied with this procedure?
Applicability of UNCAT to UK Forces Abroad The Committee Against Torture in its Concluding Observations emphasised that “the Convention protections extend to all territories under the jurisdiction of a State party and . . . this principle includes all areas under the de facto eVective control of the State Party’s authorities.” The Committee recommended that the UK should ensure the application of Article 2 UNCAT (the duty to takeeVective measures to prevent torture) and Article 3 UNCAT (the duty of non-refoulement to face torture on return) to transfers of detainees from UK custody to either the de jure or de facto custody of any other state. The Court of Appeal in the case of R (Al-Skeini) v Secretary of State for Defence,2 recently held that the Human Rights Act applied to people under arrest by British troops abroad, though it did not apply to those at liberty on the streets of Basra. As regards the Convention Against Torture, the US Secretary of State, Condoleezza Rice, made clear in a statement in December that the US now accepted that it applied to US interrogators abroad.3
6. Is it now the Government’s position that obligations under the Convention against Torture also apply to those in the custody of British troops abroad, and to the transfer of those prisoners to the custody of other states?
Optional Protocol to the Convention Against Torture The Optional Protocol to the Convention Against Torture (OPCAT), which the UK became one of the first states to ratify in December 2003, provides for independent inspection of places of detention by national monitoring bodies designated by the State, as well as by a sub-committee of the Committee Against Torture. Under the Protocol, states are required to designate national monitoring bodies (Article 17); to guarantee
1 [2005] UKHL 71. 2 [2005] EWCA Civ 1609. 3 Statement by Condoleezza Rice, 7 December 2005. 3358392007 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 85
their independence (Article 18) and to allow them access to places of detention (Article 19). We understand that Her Majesty’s Chief Inspector of Prisons was to have been a designated national monitoring body under OPCAT. The Police and Justice Bill, currently before the House of Commons, abolishes the oYce of Chief Inspector of Prisons and merges its functions with those of a number of other criminal justice inspectorates4 to create a new oYce of Chief Inspector for Justice, Community Safety and Custody. The new Chief Inspector for Justice, Community Safety and Custody will retain the duty to inspect places of detention,5 as one of a wide range of functions related to the courts system, criminal justice system and immigration enforcement system.6 Clause 25 of the Bill makes the Chief Inspector subject to Ministerial directions to inspect, report or advise on matters related to the Chief Inspector’s remit.
7. Are you satisfied that the new Chief Inspector for Justice, Community Safety and Custody will provide suYciently eVective and independent inspection of prisons and other places of detention to be a designated national monitoring body under OPCAT?
Extraordinary Renditions We are grateful for Baroness Ashton’s commitment, in the course of the oral evidence session last week, to report back to the Committee with any further information that comes to light regarding investigations into extraordinary rendition flights passing through the UK. In this regard we note that in a letter of 6 March 2006 to Sir Menzies Campbell, the Minister for the armed forces, Adam Ingram MP, disclosed that two aircraft known to have been chartered by the CIA landed on 14 occasions at two RAF bases.
8. In light of this information, will there now be a specific investigation into the passage of these aircraft through the UK?
9. What action will the Government take if these aircraft pass through the UK again? I would be grateful if you could provide your response to these questions by 27 March 2006. 13 March 2006
3. Letter from Baroness Ashton of Upholland, Parliamentary Under Secretary of State, Department for Constitutional AVairs
Inquiry into Compliance with the Convention Against Torture Thank youfor yourletter of 13 March to Harriet Harman asking for her views o n various matters connected with provisions of the UN Convention Against Torture that there was not time to discuss when we both gave evidence to youon 6 March. May I begin by saying how pleased I am to have this early opportunity of informing youand the Committee that I have taken over responsibility for human rights in the Department of Constitutional AVairs. I am delighted with this new challenge and look forward to further conversations with youand the Committee on the development of human rights in the UK. With the establishment of the Commission for Equality and Human Rights, this is a crucial time in the development of human rights policy and in achieving the goals that the Government set itself when it introduced the Human Rights Act in 1998. I look forward immensely to a continuing discussion with the Committee on that. Turning to your letter, you asked nine specific questions, which for ease of reference I reproduce below.
1. Can you confirm . . . that the Government will not seek to rely in legal proceedings on evidence which it has reason to believe may have been obtained by torture by foreign agents acting abroad? We welcomed in December 2005 the decision of the House of Lords in A(FC) v the Secretary of State for the Home Department which gave clarity about this extremely important and very diYcult issue. The decision has not and will not change our current practices, but it has provided greater legal authority. Their Lordships’ decision that evidence obtained by torture was inadmissible in appeals against certification under Part 4 of the Anti-terrorism, Crime and Security Act 2001, has simply replaced the Government’s own stated policy, namely not to rely on evidence which we believed to have been obtained by torture. However, their Lordships held it was perfectly lawful for such information to be relied on operationally, and also by the Home Secretary in making executive decisions.
4 Her Majesty’s Chief Inspector of Constabulary; Her Majesty’s Chief Inspector of the Crown Prosecution Service; Her Majesty’s Inspectorate of the National Probation Service for England and Wales; Her Majesty’s Inspectorate of Court Administration. Clause 29 of the Bill. 5 Clause 23. 6 Clause 22. 3358392008 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 86 Joint Committee on Human Rights: Evidence
2. Following the House of Lords judgment, will additional steps now be taken by Government to determine the provenance of information from foreign intelligence agencies? Although I would like to be helpful, I am afraid it is not appropriate for me to discuss this here. It is the Government’s longstanding policy not to comment on intelligence matters.
3. Do you accept that it is not enough for Government agencies to accept at face value interrogation information from states known to use torture? We evaluate all the information we receive before it is passed into the assessment process.
4. How can you be assured that such close involvement [as that reported in Eliza Manningham Buller’s witness statement to the House of Lords on 20 December 2005] in an interrogation in a State known to use torture, does not make UK oYcials complicit in crimes of torture? Again, as in my reply to your Question 2, I am afraid it is not appropriate for me to discuss this here.
5. What procedures are in place to ensure that all UK personnel report immediately any activities, including acts by foreign interrogators, which could breach the Torture Convention? Are you satisfied that British oYcials present at Guantanamo Bay have complied with this procedure? The Intelligence and Security Committee looked at this subject in detail in its 2005 Report on the Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq. I would refer you to that report and the Government’s response. Both are available on the ISC webpage on www.cabin- etoYce.ciov.uk/intelligence.
6. Is it now the Government’s position that obligations under the Convention against Torture also apply to those in the custody of British troops abroad, and to the transfer of those prisoners to the custody of other states? I am sure you will appreciate that responsibility for issues concerning prisoners in other states does not fall under the remit of my Department. However, I am of course aware that the Court of Appeal has held that both the European Convention on Human Rights and the Human Rights Act apply in certain defined circumstances in other countries. However, the Court of Appeal has granted leave to appeal to the House of Lords on this issue so for the time being the Ministry of Defence must reserve its position. The Government does not consider that Article 3, UNCAT is applicable to the transfer of detainees from physical custody by the UK in Iraq or Afghanistan to the physical custody of either the Iraqi authorities or the Afghan authorities. Although a detainee may be physically transferred from UK custody to, for example, Iraqi custody, there is no question of expulsion, return (refoulement) or extradition to another State, as referred to in Article 3, all of which include an element of moving a person from the territory of one State to that of another. That is not to say that the Government is not concerned about prisoner treatment. We have negotiated a Memorandum of Understanding with the Iraqi Government stating that detainees whom the UK Forces hand to the Iraqi authorities shall be treated humanely and not tortured. If we had reason to believe that the Iraqi authorities were not complying with this requirement, we would not transfer detainees to the establishment concerned and would take up the matter up with the Iraqi authorities at senior level. We do accept that CAT provides an obligation to ensure that UK personnel are prosecuted under UK law if they engage in acts of torture wherever they are in the world. This is in line with the position set out by Condoleezza Rice on the application of UNCAT for US interrogators operating abroad. We do not consider, however, that CAT requires the UK to ensure that acts of torture are not committed by persons who are not generally subject to UK laws, as such an interpretation would be impossible to implement.
7. Are you satisfied that the new Chief Inspector for Justice, Community Safety and Custody will provide suYciently eVective and independent inspection of prisons and other places of detention to be a designated national monitoring body under OPCAT? We are entirely satisfied about that. The new Chief Inspector’s distinct statutory duty to inspect and report on the treatment and conditions of prisoners and those held in other forms of detention replicates that of the Chief Inspector of Prisons (and adds custody arrangements at courts and police stations). The new Chief Inspector will be an independent statutory oYce holder, appointed by the Queen, as is the Chief Inspector of Prisons. He or she will be under a statutory duty, when staYng the inspectorate, to secure suYcient expertise and experience relating to the inspected systems and organisations. Provisions in the Bill for powers of entry and publication of reports will strengthen the eVectiveness and independence of the inspection regime—for example, the new Chief Inspector will be able to insist that Ministers lay an inspection report before Parliament. Ministers will be able to direct inspection of an area of special concern but will not be able to prevent inspections proposed by the Chief Inspector. 3358392008 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 87
8. In light of . . . information [provided in a letter from Adam Ingram to Sir Menzies Campbell that two aircraft known to have been chartered by the CIA landed on fourteen occasions at two RAF bases], will there now be a specific investigation into the passage of these aircraft through the UK?
The information in the letter was provided in the interests of transparency, given the high level of public and parliamentary interest. None of the information in the letter provides any evidence that these flights were involved in rendition, and therefore no basis for further action.
9. What action will the Government take if these aircraft pass through the UK again?
We are clear that the US would not render a detainee through UK territory or airspace (including Overseas Territories) without our permission. I refer to the Foreign Secretary’s written ministerial statement of 20 January 2006. Please let me know if I can be of further assistance. 27 March 2006
4. Evidence to the Parliamentary Joint Committee on Human Rights—Rt Hon Harriet Harman QC, MP, Minister of State for Constitutional AVairs, Department for Constitutional AVairs, 2006
Substantive Law Enforcement Procedures Investigating Actual Cases Authority
UK oYcial acting — Torture is criminal oVence — Criminal prosecution in UK Police (including There have been in UK under Criminal Justice Act courts—Attorney General military police) no prosecutions 1988 consent required and prosecution for torture under — Torture is unlawful under — Applicant may bring authorities the CJA 1988 HRA and a breach of ECHR proceedings under HRA (in — Other UK criminal and civil UK), or ECHR (in laws may also apply (eg Strasbourg)* assault, false imprisonment) — Criminal and civil actions in UK courts UK oYcial acting — Torture is criminal oVence — Criminal prosecution in UK Ditto Courts-martial abroad under CJA courts—Attorney General proceedings — HRA and ECHR may also consent required against troops for apply (extra-territorial eVect — Applicant may bring oVences other of HRA and ECHR currently proceedings under HRA, or than torture (eg subject to litigation—Al ECHR assault) arising Skeini case) — Criminal prosecution in UK out of incidents in — Other UK criminal laws, and courts; courts martial Iraq and military laws, may also apply Afghanistan Action abroad (eg — Torture is criminal oVence — Criminal prosecution in UK Police and Zardad case against enemy under CJA, unless action has Courts. Attorney General prosecution (Afghan warlord combatants, “lawful authority, consent required. authorities convictedinUK POWs or justification or excuse” under — “Lawful authority” defence in 2005,in civilians)—UK foreign law currently being examined by relation to torture oYcials not — Other UK criminal laws may Home OYce, following carried out in involved also apply (eg Geneva recommendations by the UN Afghanistan) Conventions Act 1957 Committee Against Torture. criminalises certain grave — Criminal prosecution in UK breaches of the Geneva courts. Attorney General Conventions (including consent required for torture), regardless of where prosecutions under Geneva breaches occur, or nationality Conventions Act 1957. of the perpetrator; UK has — Subject to state and extra-territorial jurisdiction diplomatic immunities. over hostage-taking). UK national — Ditto — Ditto Police and No prosecutions abroad, acting as prosecution for torture under oYcial under authorities CJA 1988 foreign law Foreigner in — Torture is criminal oVence — Criminal prosecution in UK Police and Ditto aircraft on ground under CJA courts—Attorney General prosecution in UK, or which — Other criminal and civil laws consent required authorities next lands in may also apply. Courts in the — Civil and criminal actions in UK—UK oYcials UK have jurisdiction to deal UK courts not involved with oVences which are — Subject to state and committed on board any diplomatic immunities aircraft which is on the ground in the UK, or whose next landing is in the UK. 3358392009 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 88 Joint Committee on Human Rights: Evidence
Substantive Law Enforcement Procedures Investigating Actual Cases Authority
UK deporting — Unlawful under HRA and — HRA, or cite Refugee Police and Argued in many person—real risk breach of ECHR. Breach of Convention (in UK), or prosecution cases as a defence of torture in Refugee Convention, subject ECHR (in Strasbourg), authorities to removal or destination state to exceptions in the including through deportation Convention immigration appeal process — Other criminal and civil laws (AIT, SIAC) may also apply, eg aiding and — Criminal and civil actions in abetting torture. UK courts
* HRA claims may be either free-standing claims under section 7 HRA, or form part of other legal proceedings (eg judicial review proceedings). Victims must exhaust domestic proceedings before bringing ECHR proceedings.
5. Letter from the Chair to Chief Constable Sir Hugh Orde, Police Service of Northern Ireland
USE OF ATTENUATING ENERGY PROJECTILES (AEPs) BY THE PSNI The Joint Committee on Human Rights (JCHR) is conducting an inquiry into UK compliance with the United Nations Convention Against Torture (UNCAT). One of the issues raised as part of this inquiry has been the firing of plastic bullets in Northern Ireland, and in particular the recent use of Attenuating Energy Projectiles (AEPs). At a recent evidence session on this subject, British Irish Rights Watch (BIRW), in querying the necessity of resort to AEPs, pointed to the discrepancies in police use of AEPs in Belfast, were we understand that more than 200 AEPs were discharged by the PSNI in September 2005, and in Derry, where AEPs have not been used, despite diYcult crowd control situations. I would be grateful for any explanation you could provide for this apparent discrepancy, and for any information youcan provide on whether di Verent policing and crowd control strategies are being pursued in Derry and Belfast, which result in diVerential use of AEPs. 19 December 2005
6. Letter from Chief Constable Sir Hugh Orde, Police Service of Northern Ireland
USE OF ATTENUATING ENERGY PROJECTILES (AEPs) BY THE PSNI Thank you for your letter dated 19 December 2005 in relation to the above subject. As I am sure you understand the use of AEPs (formerly known as baton rounds and plastic bullets), which are a modified version of a weapon that has a very diYcult history in Northern Ireland is something which I take very seriously indeed. I do not feel that it is appropriate to deal with the matters raised by Jane Winter in the limited transcript I have seen by way of written correspondence, and would ask you to consider inviting me to give evidence to your Committee. I would wish to bring with me my Assistant Chief Constable for Urban Region who was my Gold Commander during these disturbances, and also my Assistant Chief Constable for Rural Region who is responsible for public order in Derry. I would be most grateful if youcouldadvise me on who else gave evidence in relation to the minimum use of force by police oYcers in response to serious public disorder and would be grateful for sight of any other relevant parts of the evidence given to your Committee. I was on duty throughout the disturbances of 12 July and 10 September and in 29 years of policing I have never witnessed such aggression towards members of my Police Service or members of the Army (who also fired in excess of 200 AEPs). It is almost beyond belief that no soldier or police oYcer was killed and indeed I would wish to argue strongly that not only was our response proportionate and appropriate, but bespoke to diVerent circumstances in diVerent areas at diVerent times. I also note in the paper youkindly sent me, that Ms Winter suggeststhat one o f my Police Board Human Rights Advisers was dissatisfied with our tactics. I have written to Professor Sir Desmond Rea asking that he releases to youa copy of their report in relation to these disturbancesa s I would also wish this to be introduced to your Committee. By way of explanation, the Police Board is responsible in law for monitoring human rights compliance within my Service (a unique situation in UK policing), and I can report that Keir Starmer QC and Jane Gordon, two of the most experienced Human Rights Lawyers in the country, carry out this function on behalf of the Board. Indeed they also were present in the control room during the disturbances mentioned (again something unique in UK policing) and I hold them both in very high regard. I think it would be useful if your Committee had sight of their findings. I look forward to hearing from you and I would be delighted to attend your next Committee in London if you think it would be helpful. Due to the deep political sensitivity around the use of this tactic, and the observations made by Ms Winter when giving evidence to your Committee, I have copied this 3358392011 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 89
correspondence to my Secretary of State Peter Hain, and my Security Minister Shaun Woodward. Indeed both these gentlemen also visited the control room during the summer to see at first hand how we deal with these diYcult policing situations in Northern Ireland. 12 January 2006
7. Letter from Keir Starmer QC, Doughty Street Chambers
USE OF ATTENUATING ENERGY PROJECTILES (AEPs) BY THE PSNI I am one of the Human Rights Advisors to the Policing Board. I have held that post since February 2003 and have, together with my colleague Jane Gordon, published three reports on the compliance by the PSNI with the Human Rights Act 1998. Two of those reports were special reports into the policing of particular parades in Northern Ireland in 2004 and 2005, the other was an annual report into all aspects of policing. As is acknowledged in those reports, the PSNI has aVorded us unrestricted access to any documents, oYcers or operations in order to facilitate our work. The PSNI has also responded positively to the recommendations that Jane Gordon and I have made in relation to its work. Such a constructive dialogue is extremely welcome. Having reviewed the transcript of a recent session of the Joint Committee on Human Rights, I was deeply concerned to see that Jane Winter of British Irish Rights Watch suggested to the Committee that I told her informally that “the police allowed themselves to get into a corner where they put themselves more at risk than they need have done in relation to the recent policing of parades” (transcript p 8). For the record, I have never suggested any such thing. My findings are clear from the reports identified above, which were the result of many weeks of work checking every detail possible against the records, videos and other logs, and meeting the interested parties, including the oYcer staking key decisions on the day. We were also present in Belfast on the day, watching events as they unfolded. I have spoken to Jane Winter and she accepts that she may have misunderstood me. I accept that is genuinely the case and that her comments reflect her honest, if erroneous, recollection of a conversation between us. However, I do think it is important for the record to be set straight. If the Joint Committee on Human Rights would like to hear evidence from either Jane Gordon or myself, we would be very happy to attend one of the Committee’s sessions. Otherwise, I would ask that you bring this letter to the attention of the Committee so that the record can be set straight. In the meantime, I will arrange for copies of our reports to be sent to you for your information. I have copied this letter to the Chief Constable, the Chairman of the Policing Board and to Jane Winter. 1 February 2006
8. Letter from Mrs Nuala O’Loan, Police Ombudsman for Northern Ireland
USE OF ATTENUATING ENERGY PROJECTILES (AEPs) BY THE PSNI Your letter of 19 December 2005 to Sir Hugh Orde which related to the use of Attenuating Energy Projectiles by the Police Service of Northern Ireland was sent to me by the Chief Constable. The Chief Constable was concerned that it is possible that your Committee is not sighted of the oversight mechanisms through which the police are held to account. I am responsible under Part VII of the Police (Northern Ireland) Act 1998 for the provision of a police complaints system in Northern Ireland. As Police Ombudsman I have an agreement with the Chief Constable that he will voluntarily refer to me for investigation every occasion on which a firearm is used by police in Northern Ireland. The reference for investigation of an incident is made regardless of whether any injury is suVered. The event which triggers the investigation is the discharge of a firearm. In this context my OYce investigates all use of attenuating projectiles by the PSNI. I enclose for your information a copy of a report which we produced recently in relation to the use of baton rounds which were the previous projectile used by the PSNI. I hope this may be of some interest to you. The investigations into the use of attenuating energy projectiles by the PSNI in July and September 2005 is currently under investigation and I cannot yet comment in detail on the individual discharges. I can, however, provide for yousome information in relation to the level of viole nce which occurred on 12 July and between 10 and 13 September when AEPs were fired. Our investigation has shown thus far that as many as 100 bullets were fired along with numerous petrol bombs and blast bombs targeted at the police. The level of violence which prevailed in Belfast, during that weekend in September was almost unparalleled. The risk to members of the public from the attacks which were occurring were very significant and were very diVerent from the situation which prevailed in Derry. At this stage I cannot comment further on use by the PSNI of the AEPs. 3358392013 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 90 Joint Committee on Human Rights: Evidence
If youexamine the report on the Use of Baton Roundsyouwill see that we comme nt at length and we have made a lot of recommendations in relation to control over the use of these baton rounds. Although the British Irish Rights Watch and others are of the view that AEPs should not be available for use by the PSNI I am very firmly of the opinion that AEPs must remain available for use in situations where attacks on the police take the form of live fire, petrol bombs, blast bombs and other missiles which are threatening to life. The controls on the use of AEPs in Northern Ireland are now stringent and rightly so. I will forward to youinformation in relation to the outcomeof the investig ation when it is completed. 27 February 2006
9. Letter from the Chair to Shaun Woodward MP, Parliamentary Under Secretary of State, Northern Ireland OYce
INQUIRY INTO COMPLIANCE WITH THE CONVENTION AGAINST TORTURE Thank youfor providing oral evidence to the Joint Committee on HumanRight s recently as part of its inquiry into compliance with the UN Convention Against Torture. We are grateful for your undertaking to reply in writing to questions which we did not have time to address in the course of that session. In particular, we would be grateful for your views on the Northern Ireland Human Rights Commission’s powers of entry to places of detention, an issue which was raised by the UN Committee Against Torture in its concluding observations. In the recent Consultation Paper on the Commission’s Powers, it was stated that such powers would be granted, but might be subject to conditions—for example the Commission might have to give notice of its visit, or negotiate the terms for reference for a visit with the place of detention. Is there a danger that such conditions would defeat the purpose of a power of access to places of detention? The Optional Protocol to the Convention, which the UK became one of the first states to ratify in 2004, provides for independent inspection of places of detention by national monitoring bodies designated by the State, as well as by a sub-committee of the UN Committee Against Torture. Can you confirm whether the NIHRC is to be a designated body under the Optional Protocol to the Torture Convention? Youalso indicated at the oral evidence session that youmight wish to add to your evidence on the question of accommodation for women prisoners in Northern Ireland. If there are further points on this subject which you would like to make in writing, we would be happy for you to do so. I would be grateful if you could provide your response by 31 March 2006. 17 March 2006
10. Letter from Mr Shaun Woodward MP, Parliamentary Under Secretary of State for Northern Ireland, Northern Ireland OYce Thank you for your letter of 17 March, requesting some further information in follow up to our committee session of 8 March. As yourightly note, dueto time constraints on the day, w e were unable to provide all of the information we wished to. You ask about the Government’s proposals to grant the Northern Ireland Human Rights Commission (NIHRC) the power to access places of detention and whether applying conditions to the power would defeat its purpose. The Government believes that it is right that NIHRC has this power, to enable it to carry out its duties eVectively. We also recognise, however, that there is already a range of inspection and oversight bodies with powers of access, and it will be important to ensure that there is not duplication of work by NIHRC or unnecessary disruption of the services provided by these bodies or the places of detention. Consequently, the consultation paper on the powers of NIHRC set out some possible safeguards that might be applied to the proposed power to access places of detention. The paper made clear though that these were examples of possible measures and invited views on how Government should ensure that appropriate safeguards are put in place. We have received a number of responses to the consultation that touch on these points. We will carefully consider all responses before we set out our detailed proposals. You also ask about the separate issue of NIHRC being designated as a body within the National Preventive Mechanism (NPM) under the Optional Protocol to the Convention against Torture. Discussions are taking place between Government Departments on the operation of the NPM and the inspection bodies that will be designated within it. At this stage I cannot say what the final make-up of the NPM will be but it will involve all those bodies necessary to ensure that the NPM fully conforms with the requirements of the Optional Protocol. With regards to accommodation for women prisoners, as I stated in our session, the Northern Ireland Prison Service recognised that there were a number of needs that had to be addressed in this area. I am encouraged by the fact that a detailed action plan has been rigorously taken forward. About seventy percent of the recommendations have now been implemented with significant progress being made on the rest. Fundamental changes include the following: 3358392015 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 91
— the development of gender specific programmes and policies; — women now have access to in-cell sanitation; — the majority (75%) of staV in the unit are now female; — a NIPS female Governor dedicated to the management of female prisoners is now in place; — a female Governor, on secondment from HMPS, was appointed on 20 June 2005 to lead the development of the regime for Ash; — women prisoners have access to a full range of education, work and rehabilitative programmes; — a health needs assessment has been carried out and 3 Cognitive Behavioural Therapy nurses have been recruited; and — an assessment of women prisoners integration needs was published and further opportunities have been made to cover areas where additional needs were identified. On the issue of providing a separate prison for women, the Service has indicated that Ash House may not be the long term option for women prisoners. At present, Prison Service managers are actively considering longer term alternatives as part of an ongoing strategic review of the Prison Estate. In terms of both the conditions under which women are detained, and the powers of NIHRC, it is important to note that the Commission already plays a valuable role in this area. They have ongoing access to interview women prisoners (with their consent) and to examine the conditions under which they are detained. They have just completed further detailed research on these conditions, which is expected to be published before the summer, and are also due to take forward work in relation to suicide and self harm. The Northern Ireland Prison Service is committed to protecting and promoting the human rights of all prisoners and I value the role of the Human Rights Commission in supporting the Service in achieving its objectives. 18 April 2006
11. Letter from the Chair to Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth AVairs
EXTRAORDINARY RENDITIONS As you probably know, the Joint Committee on Human Rights is conducting an inquiry into UK compliance with the UN Convention Against Torture. As part of this inquiry we are considering reports of the use of UK airports for stopovers in extraordinary renditions, and the implications which would arise, if UK airports were being used in this way, for compliance with the Convention. I noted with interest at FCO questions on 29 November that Douglas Alexander said that youhad written to the US Secretary of State, on behalf of the European Union, in regard to allegations about detention camps and rendition flights. Given my Committee’s interest in this matter, we would be grateful if you could provide us with a copy of this letter, including any reply received from the US Secretary of State. We would also appreciate information on any further representations you have made to the United States authorities regarding alleged stopovers of extraordinary rendition aircraft at UK airports. 7 December 2005
12. Letter from Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth AVairs
EXTRAORDINARY RENDITION Thank you for your letter of 7 December about Extraordinary Rendition. Following discussion among EU Foreign Ministers at a Council meeting on 21 November, as the EU Presidency, I wrote to the US Secretary of State on 29 November seeking clarification on the alleged US detention or transportation of terrorists suspects in or through EU member states. On 5 December, the Secretary of State made a public statement on the issue in advance of her visit to Europe. I welcomed her statement with one of my own. The Secretary of State sent me a copy of her statement on 6 December as the formal reply to my letter of 29 November. I forwarded this to my EU colleagues on 7 December. Some EU colleagues were able to discuss the matter further with the US Secretary of State during her visit to Europe that week. I also answered a Parliamentary Question on 12 December that will be of interest to the Committee. I enclose copies of these statements and the Parliamentary Answer. I am not releasing copy of the letters out of courtesy to the senders and recipients. I can say, however, that the content of the exchanges between me, the US Secretary of State and my EU colleagues is covered in the statements enclosed. 3358392016 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 92 Joint Committee on Human Rights: Evidence
I have no reason to believe that suspected terrorists have been rendited through UK territory or airspace during the Bush Administration. None of the information published recently has demonstrated otherwise. As the Prime Minister said to Charles Kennedy at Prime Minister’s Questions last week, we see no value and have no intention of checking every flight transiting the UK which may have some connections with the US Government. You ask about further representations to the US. We talk to the US Government on a regular basis on a whole range of issues. I would prefer to keep those exchanges confidential and to safeguard the eVectiveness of those exchanges in the process. 21 December 2005
Copy letter from Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth Affairs to Her Excellency Dr Condoleezza Rice,State Department, USA As the Presidency of the Council of the European Union, I am writing to you on behalf of the European Union following media reports suggesting violations of international law in the alleged US detention or transportation of terrorist suspects in or through EU member states. This matter was discussed by EU Foreign Ministers at the meeting of the General AVairs and External Relations Council on 21 November. The reports have attracted considerable parliamentary and public attention. The EU would therefore be grateful for clarification the US can give about these reports in the hope that this will allay parliamentary and public concerns. I am sharing a copy of this letter with my European colleagues. 29 November 2005
Statement Delivered by Condoleezza Rice, the US Secretary of State,5December 2005 We have received inquiries from the European Union, the Council of Europe, and from several individual countries about media reports concerning US conduct of the war on terror. I wish to respond now to those inquiries, as I depart today for Europe. The United States and many other countries are waging a war against terrorism. For our country this war often takes the form of conventional military operations in places like Afghanistan and Iraq. Sometimes this is a political struggle, a war of ideas. It is a struggle waged also by our law enforcement agencies. Often we engage the enemy through the co-operation of our intelligence services with their foreign counterparts. We must track down terrorists who seek refuge in areas where governments cannot take eVective action, including where the terrorists cannot in practice be reached by the ordinary processes of law. In such places terrorists have planned the killings of thousands of innocents—in New York City or Nairobi, in Bali or London, in Madrid or Beslan, in Casablanca or Istanbul. Just two weeks ago I visited a hotel ballroom in Amman, viewing the silent, shattered aftermath of one of those attacks. The United States, and those countries that share the commitment to defend their citizens, will use every lawful weapon to defeat these terrorists. Protecting citizens is the first and oldest duty of any government. Sometimes these eVorts are misunderstood. I want to help all of you understand the hard choices involved, and some of the responsibilities that go with them. One of the diYcult issues in this new kind of conflict is what to do with captured individuals who we know or believe to be terrorists. The individuals come from many countries and are often captured far from their original homes. Among them are those who are eVectively stateless, owing allegiance only to the extremist cause of transnational terrorism. Many are extremely dangerous. And some have information that may save lives, perhaps even thousands of lives. The captured terrorists of the 21st century do not fit easily into traditional systems of criminal or military justice, which were designed for diVerent needs. We have to adapt. Other governments are now also facing this challenge. We consider the captured members of al-Qaeda and its aYliates to be unlawful combatants who may be held, in accordance with the law of war, to keep them from killing innocents. We must treat them in accordance with our laws, which reflect the values of the American people. We must question them to gather potentially significant, life-saving, intelligence. We must bring terrorists to justice wherever possible. For decades, the United States and other countries have used “renditions” to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice. In some situations a terrorist suspect can be extradited according to traditional judicial procedures. But there have long been many other cases where, for some reason, the local government cannot detain or prosecute a suspect, and traditional extradition is not a good option. In those cases the local government can make the sovereign choice to co-operate in a rendition. Such renditions are permissible under international law and are consistent with the responsibilities of those governments to protect their citizens. 3358392017 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 93
Rendition is a vital tool in combating transnational terrorism. Its use is not unique to the United States, or to the current administration. Last year, then Director of Central Intelligence George Tenet recalled that our earlier counterterrorism successes included “the rendition of many dozens of terrorists prior to 11 September 2001”. Ramzi Youssef masterminded the 1993 bombing of the World Trade Center and plotted to blow up airlines over the Pacific Ocean, killing a Japanese airline passenger in a test of one of his bombs. Once tracked down, a rendition brought him to the United States, where he now serves a life sentence. One of history’s most infamous terrorists, best known as “Carlos the Jackal”, had participated in murders in Europe and the Middle East. He was finally captured in Sudan in 1994. A rendition by the French government brought him to justice in France, where he is now imprisoned. Indeed, the European Commission of Human Rights rejected Carlos’ claim that his rendition from Sudan was unlawful. Renditions take terrorists out of action, and save lives. In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances. Moreover, in accordance with the policy of this administration: — The United States has respected—and will continue to respect—the sovereignty of other countries. — The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture. — The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured. — The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured. International law allows a state to detain enemy combatants for the duration of hostilities. Detainees may only be held for an extended period if the intelligence or other evidence against them has been carefully evaluated and supports a determination that detention is lawful. The US does not seek to hold anyone for a period beyond what is necessary to evaluate the intelligence or other evidence against them, prevent further acts of terrorism, or hold them for legal proceedings. With respect to detainees, the United States Government complies with its Constitution, its laws, and its treaty obligations. Acts of physical or mental torture are expressly prohibited. The United States Government does not authorise or condone torture of detainees. Torture, and conspiracy to commit torture, are crimes under US law, wherever they may occur in the world. Violations of these and other detention standards have been investigated and punished. There have been cases of unlawful treatment of detainees, such as the abuse of a detainee by an intelligence agency contractor in Afghanistan or the horrible mistreatment of some prisoners at AbuGhrai b that sickened us all and which arose under the diVerent legal framework that applies to armed conflict in Iraq. In such cases the United States has vigorously investigated, and where appropriate, prosecuted and punished those responsible. Some individuals have already been sentenced to lengthy terms in prison; others have been demoted or reprimanded. As CIA Director Goss recently stated, our intelligence agencies have handled the gathering of intelligence from a very small number of extremely dangerous detainees, including the individuals who planned the 9/11 attacks in the United States, the attack on the USS Cole, and many other murders and attempted murders. It is the policy of the United States that this questioning is to be conducted within US law and treaty obligations, without using torture. It is also US policy that authorized interrogation will be consistent with US obligations under the Convention Against Torture, which prohibit cruel, inhuman, or degrading treatment. The intelligence so gathered has stopped terrorist attacks and saved innocent lives— in Europe as well as in the United States and other countries. The United States has fully respected the sovereignty of other countries that co-operate in these matters. Because this war on terrorism challenges traditional norms and precedents of previous conflicts, our citizens have been discussing and debating the proper legal standards that should apply. President Bush is working with the US Congress to come up with good solutions. I want to emphasize a few key points. — The United States is a country of laws. My colleagues and I have sworn to support and defend the Constitution of the United States. We believe in the rule of law. — The United States Government must protect its citizens. We and our friends around the world have the responsibility to work together in finding practical ways to defend ourselves against ruthless enemies. And these terrorists are some of the most ruthless enemies we face. — We cannot discuss information that would compromise the success of intelligence, law enforcement, and military operations. We expect that other nations share this view. Some governments choose to co-operate with the United States in intelligence, law enforcement, or military matters. That co-operation is a two-way street. We share intelligence that has helped protect European countries from attack, helping save European lives. 3358392017 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 94 Joint Committee on Human Rights: Evidence
It is up to those governments and their citizens to decide if they wish to work with us to prevent terrorist attacks against their own country or other countries, and decide how much sensitive information they can make public. They have a sovereign right to make that choice. Debate in and among democracies is natural and healthy. I hope that that debate also includes a healthy regard for the responsibilities of governments to protect their citizens. Four years after 11 September, most of our populations are asking us if we are doing all that we can to protect them. I know what it is like to face an inquiry into whether everything was done that could have been done. So now, before the next attack, we should all consider the hard choices that democratic governments must face. And we can all best meet this danger if we work together.
Press Release Monday 5December 2005
Foreign Secretary’s Response to Statement by the US Secretary of State “I welcome the detailed statement by US Secretary of State, Condoleezza Rice today on the treatment of detainees. All European countries fully share the determination expressed here by the US to protect our citizens from the threat of terrorism, clearly while operating within international law and our treaty obligations. “We, the EU and the wider international community must be clear on the terrorism threat we face. Modem terrorism means mass casualties as we saw on 11 September and 7 July. We are exposed to an unprecedented threat of suicide attacks on innocent civilians using sophisticated technology and techniques. It is right that democracies should discuss these issues, including the importance of the legal framework, which we all observe. “Secretary Rice’s reply makes clear that US policy is to comply with the UN Convention Against Torture and, in this respect ‘the United States government complies with its Constitution, its laws, and its treaty obligations. Acts of physical or mental torture are expressly prohibited. The United States government does not authorise or condone torture of detainees. Torture, and conspiracy to commit torture, are crimes under US law, wherever they may occur in the world.’ And that the US has ‘fully respected the sovereignty’ of other countries that co-operate in these matters. “All of us must work together—within the rule of law—to use every tool at our disposal to deal with the threat of terrorism.” END
Text of Foreign Secretary’s Response, to PQ Tabled by Sir MCampbell.Answered on 12 December: Question: To ask the Secretary of State for Foreign and Commonwealth AVairs, when he was first informed that the United States was conducting international renditions of terrorist suspects; and what representations he has made to the US Administration on such renditions. Answer: The term “rendition” is currently being used to describe informal transfers of individuals in a wide range of circumstances. Whether any particular “rendition” is lawful depends on the facts of each individual case. Where we are requested to assist another State and our assistance would be lawful, we will decide whether or not to assist taking into account all the circumstances. We would not assist in any case if to do so would put us in breach of UK law or our international obligations. In particular, we would not facilitate the transfer of an individual from or through the UK to another State where there were grounds: to believe that the person would face a real risk of torture. Careful research by oYcials has been unable to identify any occasion since 11 September 2001, or earlier in the Bush Administration, when we received a request for permission by the United States for a rendition through UK territory or airspace, nor are we otherwise aware of such a case. Additional research covering the remainder of the period of oYce of this Government (ie back to May 1997) has been undertaken. This shows there were some renditions via the UK during that period. Specifically, we have; identified two definite occasions in 1998 when requests were made by the US. These occasions, for which records have been identified were for transfer to the US for the person concerned to stand trial there. As Home Secretary I agreed these requests. Although confirmatory records have yet to be identified, we believe that there may have been one or two other possible cases, also in 1998, which concerned requests by the United States but for transfer to a third country. We have information on one such case which is incomplete and does not tell us whether the request was refused. We also have information on a case based on the recollection of oYcials involved in such matters, without any confirmatory records. The oYcials’ recollection is that the case was refused. It is likely, but not certain, that the two cases are in fact one and the same. I have some recollection of such a case, but given the passage of time, I cannot be certain. The search for records continues. 3358392018 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 95
13. Letter from the Chair to Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence I am writing in connection with my Committee’s current inquiry into the UK’s compliance with the UN Convention against Torture (“UNCAT”). The Committee would be grateful for your assistance in relation to two aspects of that inquiry. 1. Human Rights Obligations of the Armed Services concerning Arrest, Detention and Interrogation In its report on its work in the 2001-05 Parliament, our predecessor Committee reported on its exchange of correspondence with the MoD concerning the adequacy of the training and instruction provided to members of the armed forces about relevant human rights and humanitarian law standards.7 It regretted that it had found the MoD’s responses unilluminating and had not enabled it to reach a view on whether the Ministry had mechanisms in place to ensure compliance with the relevant standards. My Committee has decided to pursue this matter in the context of our inquiry into the UK’s compliance with UNCAT. We note that the Intelligence and Security Committee has found that UK intelligence personnel were not suYciently trained in the Geneva Conventions prior to their deployment to Afghanistan, Guantanamo Bay or Iraq, nor were they aware which interrogation techniques the UK had specifically banned in 1972, and the Committee was concerned at how long it took to address this training deficiency by issuing formal guidance.8 We also note that the Foreign AVairs Committee recommend that the Government review its training of and guidance to agency personnel, oYcers, NCOs and other ranks on the treatment of detainees to ensure that there is no ambiguity on what is permissible.9 Youprovided the last Committee with a copy of Joint Warfare Publication1– 10, “Prisoner of War Handling”, which youdescribed as the overarching policy documentfor the treatment of prisoners. However, you stated that other documents could not be released “for reasons of operational security”. We are now aware of the existence of a number of documents/materials of the kind our predecessor Committee requested, some of which we know to be in the public domain, which would greatly assist us with this part of our inquiry. The Committee recognizes that there may be genuine reasons of operational security for obscuring or even withholding certain parts of some of these materials where their disclosure would genuinely prejudice operational security. However, it does not think that considerations of operational security can justify a blanket refusal to provide any of the documents/materials requested. The documents/material which the Committee would like to see are as follows: 1. The training materials used for the mandatory training given to all members of the armed forces about their obligations under international law.10 2. The training materials used for the refresher training which every member is required to attend every year.11 3. Any training video on the Geneva Conventions or other relevant standards.12 4. The training materials used for training soldiers on prisoner handling as part of their initial training.13 5. The training materials used for training oYcers on prisoner handling at the Royal Military Academy, Sandhurst.14 6. The Permanent Joint Head Quarters Deployed Operations Instruction, Prisoner of War Handling.15 7. The Joint Service Intelligence Organisation’s Training Documentation.16 8. The specific briefs on arrests and dealing with detainees in the Iraq-specific operational training package received by members of the armed forces prior to deployment.17 9. The “aide memoire” issued to members of the armed forces deployed to Iraq in March 2003.
7 19th Report of 2004–05, The Work of the Committee in the 2001–05 Parliament, HL 112, HC 552, para 145. 8 Intelligence and Security Committee, The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq, Cm 6469 (March 2005) at paras 118, 120–121 and 127–129. 9 6th report of 2004–05, Foreign Policy Aspects of the War Against Terrorism, HC 36-I, at para 76. 10 Referred to in your letter of 25 June 2004 and at para 8 of MOD Response to Amnesty International, 30 June 2004. 11 Ibid. 12 Reportedly referred to in evidence at the Osnabruck court martial. 13 Referred to in your letter of 25 June 2004. 14 Ibid. 15 Referred to in your letter of 12 February 2005. 16 Referred to in MOD Response to Amnesty, para 40 and your letter of 12 February 2005. 17 Referred to in your letter of 12 February 2005. 3358392018 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 96 Joint Committee on Human Rights: Evidence
10. The card (JSP381) issued in theatre with written instructions on the handling of prisoners (if diVerent from the above).18 11. All versions of the Operation TELIC Standard Operating Instruction (SOI).19 12. The instruction from Lt Col Mercer of Army Legal Services dated 20 May 2003.20 13. Guidance on the detention of civilians in Iraq issued by 1 (UK) Armoured Division on 20 May 2003.21 14. First set of Standard Operating Procedures (SOPs) setting out general internment and detention procedures issued by 1 (UK) Armoured Division on 30 May 2003.22 15. Second set of SOPs issued on 26 June 2003.23 16. The order from General OYcer Commanding 1 (UK) Armoured Division that hooding—as a temporary method of detention—should cease in April 2003.24 17. The directions from the Chief of Joint Operations that hooding was to cease in September 2003.25 18. The amended version of the Standard Operating Instructions on the Policy for Apprehending, Handling and Processing Detainees and Internees issued by the UK Commander Joint Operations on 30 September 2003.26 19. The instructions on detainee treatment issued to Security Service staV on 1 July 2004.27 20. The supplementary guidance on detainee treatment issued to Security Service staV on 9 August 2004.28 21. The Standing Instruction on interviewing detainees issued on 27 August 2004.29 22. The Directive on the Joint Force Interrogation Team.30 23. The Directive on the running of the UK Divisional Temporary Detention Facility.31 2. The Use of Plastic Bullets in Northern Ireland In its Concluding Observation on the UK in 1998, the UN Committee Against Torture recommended that plastic bullets should be withdrawn from use. In its 2004 Concluding Observations the Committee welcomed the fact that, although plastic bullets had not been oYcially withdrawn, they had not in practice been used since 2002. In July, August and September 2005, however, plastic bullets (AEPs) were fired by both the police and the Army in Northern Ireland on a number of occasions. Has the Army received any complaints about the firing of AEPs, and if so, how many? If so, how are these complaints being dealt with by the Army’s internal procedures? Finally, the Committee would be grateful if you could arrange for a specimen AEP to be sent to it for inspection. It would be helpful if the information we have requested under both headings could be provided by the end of January. It is possible that on receipt of your reply we may wish to invite youto give oral evidence in this inquiry, and I hope you would be willing to do so. 8 December 2005
14. Letter from Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence I have now had the opportunity to consider your request for documents relating to the Armed Forces’ Human Rights obligations under international law and a summary of my decisions is enclosed at Annex A, citing brief reasons where I have decided to withhold or redact material.
18 Referred to in your letter of 25 June 2004. 19 Referred to in your letter of 12 February 2005. 20 Referred to in evidence in the Osnabruck court martial. 21 Referred to in Report of Intelligence and Security Committee. 22 Ibid. 23 Ibid. 24 Ibid, at para 30. 25 Ibid. 26 Ibid. 27 Ibid. 28 Ibid. 29 Ibid. 30 Referred to in your letter of 12 February 2005. 31 Ibid. 3358392019 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 97
A copy of the documents you requested including those documents with sections redacted is provided at Annex B. For those documents that have been redacted, a more detailed explanation of why, on balance, I have decided to do so is provided in a cover note to the relevant document. For one of the documents (at serial 11), I have also highlighted in the note factual inaccuracies that were overlooked at the time of drafting. As I indicated may be the case in my letter to youof 10 January,I have not yet b een able to reach final decisions regarding the release of all the documents that you requested. I will endeavour to come to decisions on these documents as soon as possible. Lastly, I attach a response to your question on the use of Army AEPs in Northern Ireland at Annex C and enclose a specimen AEP bullet as requested. I trust this is helpful. 1 February 2006 Annex A to Letter Dated 1 February
Summary of Recommendations on Release
Serial Document Title To be released in To be released in Exemption To be treated Type of document Full (Yes/No) Part (Yes/No) confidentially
1 The training materials used for the No Yes Data Protection Act Yes mandatory training given to all and Defence members of the armed forces about their obligations under international law 2 The training materials used for the Yes No n/a Yes refresher training which every member is required to attend every year 3 Any training video on the Geneva See above Conventions or other relevant standards 4 The training materials used for training soldiers on prisoner handling as part of their initial training 5 The training materials used for Yes n/a n/a Yes training oYcers on prisoner handling at the Royal Military Academy, Sandhurst 6 The Permanent Joint Head Quarters Yes n/a n/a Yes Deployed Operations Instruction, Prisoner of War Handling 7 The Joint Service Intelligence Advice to be Organisation’s Training provided Documentation 8 The specific briefs on arrests and Advice to be dealing with detainees in the Iraq- provided specific operational training package received by members of the armed forces prior to deployment 9 The “aide memoire” issued to Yes n/a n/a No members of the armed forces deployed to Iraq in March 2003 10 The card (JSP381) issued in theatre Same as above with written instructions on the handling of prisoners (if diVerent from the above) 11 All versions of the Operation TELIC No Yes Defence Yes Standard Operating Instruction (SOI) (390—new brigade comes in— archive—divisional headquarters) 12 The instruction from Lt Col Mercer No Yes Defence Yes of Army Legal Services dated 20 May 2003 13 Guidance on the detention of Same as above civilians in Iraq issued by 1 (UK) Armoured Division on 20 May 2003 14 First set of Standard Operating Yes n/a n/a Yes Procedures (SOPs) setting out general internment and detention procedures issued by 1 (UK) Armoured Division on 30 May 2003 15 Second set of SOPs issued on No Yes Information Yes 26 June 2003 supplied by or relating to bodies dealing with security matters 3358392020 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 98 Joint Committee on Human Rights: Evidence
Serial Document Title To be released in To be released in Exemption To be treated Type of document Full (Yes/No) Part (Yes/No) confidentially
16 The order from General OYcer Not available n/a n/a n/a Commanding 1 (UK) Armoured Division that hooding—as a temporary method of detention— should cease in April 2003 17 The directions from the Chief of Advice to be Joint Operations that hooding was to provided cease in September 2003 18 The amended version of the Standard Yes n/a n/a Yes Operating Instructions on the Policy for Apprehending, Handling and Processing Detainees and Internees issued by the UK Commander Joint Operations on 30 September 2003 19 The instructions on detainee No No Information n/a treatment issued to Security Service supplied by or staV on 1 July 2004 relating to bodies dealing with security matters 20 The supplementary guidance on No No Information n/a detainee treatment issued to Security supplied by or Service staV on 9 August 2004 relating to bodies dealing with security matters 21 The (DIS) Standing Instruction on Advice to be interviewing detainees issued on 27 provided August 2004 22 The Directive on the Joint Force No No Defence n/a Interrogation Team 23 The Directive on the running of the No Yes Defence Yes UK Divisional Temporary Detention Facility Question Response to Committee Question Response and n/a n/a n/a 2 and AEP specimen specimen provided
Annex B—Serial 9“Aide Memoire”Issued to Members of Armed Forces Deployed to Iraq in March 2003
Operation Telic
Aide Memoire on the Law of Armed Conflict
Introduction This leaflet is issued to all UK service personnel deployed on Operation TELIC. It outlines the key principles of the Law of Armed Conflict and oVers practical guidance on its application. Personnel whose responsibilities require them to have a more detailed knowledge of the application of the Law of Armed Conflict in this operation will find further guidance in the Rules of Engagement, Targeting Directive, and associated documents. Detailed guidance to Commanders will be available at all times through the Naval and Military legal advisers in the chain of Command.
Part A—The Law of Armed Conflict 1. In every international armed conflict, members of armed forces, including accompanying civilians, are subject not only to their own service law, but also to international law. Relevant international law, which makes up the law of armed conflict, is mainly contained in the Hague Rules of 1907, the four Geneva Conventions of 1949, and the First Geneva Additional Protocol of 1977. The law of armed conflict is enforced in the UK by Acts of Parliament such as the Geneva Conventions Act 1957; and by other provisions of criminal and service disciplinary law. Individuals who break the law may expect to be dealt with and, if found guilty, severely punished. It should be remembered that the Naval Discipline Act 1957, the Army Act 1955 and the Air Force Act 1955 operate at all times. 2. The law of armed conflict provides for the protection and humane treatment of both combatants and non-combatants. It protects the basic rights of civilians, prisoners of war (PW), and shipwrecked, wounded and sick members of armed forces. The law both imposes duties and grants rights to individuals. It is individuals who benefit from the law being obeyed. 3. All personnel should be aware of the basic rules of the law of armed conflict. They are set out in Part B for junior rates, Royal Marines, soldiers and airmen; in Part C for senior rates and noncommissioned oYcers. Protective emblems are illustrated and described in Part D. 3358392021 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 99
Part B—Rules for Junior Rates,Royal Marines,Soldiers and Airmen
I Must— 1. Comply with service discipline and these rules which are made for my protection and to reduce unnecessary suVering. 2. Respect the protective emblems of the medical services and white flag of truce (see Part D). 3. Treat persons who fall into my power humanely and protect them from the dangers of war. 4. Care for the wounded including the enemy.
I Must Not— 5. Cause more damage or injury than my operational task requires. 6. Take enemy property for my personal use. 7. Use poison or alter my weapons or ammunition so as to increase injury or damage.
I Must Not Attack— 8. Peaceful civilians. 9. Medical personnel and chaplains. 10. Those protected by a flag of truce. 11. Hospitals, medical centres or medical transports. 12. Enemy combatants who are no longer fighting and are disabled or have surrendered. 13. Civilian buildings or property which are neither being used for military purposes nor have military importance.
If Captured— 14. I must give my number, rank, full names and date of birth—but nothing else. 15. I must not do any work of a military character for my captors.
Part C—Rules for Senior Rates and Non-Commissioned Officers
Discipline 1. Discipline is vital to eYciency. OVences against service law and the law of armed conflict undermine discipline and must be dealt with. 2. Illegal orders are not to be given or carried out. 3. Breaches of the law of war are usually also oVences against service law and are tried under service discipline acts, but they may be tried by a civil court under the ordinary criminal law, which includes the Geneva Convention Act 1957.
Combat Rules 4. Killing or wounding an enemy by treachery is forbidden. 5. A white flag of truce may be used to signal a wish to talk to the enemy. The side using the white flag must stop fighting and indicate a wish to communicate. Both sides must then stop fighting. Abuse of the white flag is treachery (See Part D). 6. Poison is not to be used. Weapons and ammunition must not be altered to increase injury, or damage. 7. No more damage or injury may be caused than is necessary to carry out your operational task. Care should be taken to minimise incidental damage or injury. 8. Enemy property is not to be taken, damaged or destroyed without an operational need. Looting is prohibited. 9. It is forbidden to compel enemy nationals to take part in military operations against their own country. 3358392021 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 100 Joint Committee on Human Rights: Evidence
Attacks
10. It is prohibited to attack: a. Undefended towns, villages or buildings; safety, neutralised or demilitarised zones. b. Civilian buildings or property, especially cultural property (see Part D), provided that they are neither being used for military purposes, nor have military importance. c. Civil defence facilities, dykes, dams and nuclear power stations (see Part D), provided that they are not being used for military purposes. d. Civilians who are not actually engaged in combat. e. Medical personnel and chaplains, hospitals, medical centres or medical transports. They will usually be identified by one of the Geneva emblems: Red Cross or Red Crescent on a white background (See Part D). f. Enemy combatants who are no longer fighting because they are disabled by wounds or sickness, who wish to communicate under the flag of truce, or who have surrendered (See Part D). 11. Attacks must not be indiscriminate. They must always be directed at military objectives.
Medical Personnel and Chaplains
12. Medical personnel and chaplains have special, non-combatant status. They are only permitted to carry out their medical and spiritual duties and may take no other part in combat, except as specified below. 13. Medical personnel may carry and use small arms for their personal self-defence or the protection of their patients. They may not use them to resist capture, but only when they or their patients are directly attacked. 14. If captured, medical personnel and chaplains are not prisoners of war (PW). They may only be retained by their captors if required to continue their medical and spiritual duties for the benefit of PW of their own forces. They then have special status as “retained personnel”.
Wounded, Sick and Dead
15. All the wounded and sick must be duly treated, whether friendly or hostile. Priority of treatment is determined by medical reasons alone. The dead must not be plundered or mutilated.
Prisoners of War (PW) Status
16. In cases of doubt, captured personnel should be treated as PW until their status has been determined by higher authority.
Initial Capture
17. On initial capture of PW the following rules must be followed: a. Humane treatment. b. Medical care for the wounded. c. Search, disarm, remove military papers and equipment. d. Allow PW to keep identity documents, personal items, protective and other clothing, cutlery, badges of rank and decoration. e. Establish identity. f. No torture or threats to obtain information. g. Swift evacuation from the combat area. h. Money and valuables are only to be removed on the order of an oYcer and a receipt must be given. 3358392021 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 101
Rights if Captured 18. If you are captured you must give only your number, rank, full names, date of birth, blood type and religion.
The Detaining Power: a. Must provide adequate shelter, food, clothing and medical treatment. b. Must allow PW to make complaints to representatives of the Protecting Power or the International Committee of the Red Cross. c. Must display in permanent PW camps a copy of the 1949 Geneva PW Convention in the language of the PW. d. Cannot make any PW do work of a dangerous or military nature and can require NCO PW to do supervisory work only. e. Can take disciplinary measures against PW after investigation, trial and conviction, but may not use torture or coercion.
Civilians 19. Civilians, especially women and children, must be treated humanely and respected. They must be protected so far as possible from the incidental dangers of war. In particular they may not be used to shield military operations. Coercion, torture, collective punishments and the taking of hostages are forbidden. 3358392021 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 102 Joint Committee on Human Rights: Evidence
Part D—The Law of Armed Conflict Protective Emblems (1)
1. Medical Services
Red on a white background
2. Flag of Truce (2)
Plain white flag (any material)
3. Cultural Property (3)
Royal blue on white background
4. Civil Defence Blue triangle on orange background
5. Dykes, Dams & Nuclear Power Stations
3 bright orange circles of equal size placed on the same axis, the distance between each circle being one radius/half diameter 3358392021 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 103
Notes: (1) In addition to the emblems illustrated, the following letters should be painted on walls or roofs to denote buildings in Prisoner of War (Prisonnier de Guerre) Camps or civilian Internment Camps, which are protected from attack: PW PG IC. (2) A flag of truce indicates no more than an intention to enter into negotiations with the enemy. It does not necessarily mean a wish to surrender. There is no obligation to receive a flag party, which may be sent back. It may not however be attacked and on completion of its mission must be allowed to return to its own lines if it wishes to do so. A flag party may consist of an envoy, flag bearer, interpreter and trumpeter/bugler/ drummer or radio operator. The party may be on foot or mobile in a vehicle or aircraft flying the white flag. (3) This symbol is used by many NATO States (but not the UK) under the Hague Cultural Property Convention 1954 to denote buildings used for religion, art, science, charity, historical monuments, or other important cultural objects.
Annex C to Letter Dated 1February 2006 2. The Use of Plastic Bullets in Northern Ireland Has the Army received any complaints about the firing of AEPs, and if so, how many? If so, how are these complaints being dealt with by the Army’s internal procedures? The Army has not received any complaints about the firing of Attenuating Energy Projectiles (AEPs) following their recent use in Northern Ireland. However, the Army has received four compensation claims for injuries allegedly caused by the use of AEPs. These claims are being processed in accordance with the normal MoD civil claims procedures. Youmay be interested to note two independent investigations into the rece nt use of AEPs. The Independent Assessor of Military Complaints Procedures in Northern Ireland, Jim McDonald, is currently investigating the Army’s use of AEPs and is due to report in the next few months. His findings will be publicly available. A Human Rights Monitoring Report, written on behalf of the Northern Ireland Policing Board, into the policing of the 2005 parades held on 12 July in Ardoyne and 10 September in Whiterock, during which AEPs were fired, was published on 15 December last year and is available on the internet at the following address: http://www.nipolicingboard.org.uk/word–docs/PDFs/sep–parades.pdf As requested, I attach two inert specimen AEPs. Detailed information about the technical development of the round is contained within the fourth report of the Northern Ireland OYce (NIO) Steering Group set up to take forward recommendations 69 and 70 of the report of the Independent Commission on Policing for Northern Ireland (the Patten report). The fourth report, which was published in January 2004, is available on the NIO website at the following address: http://www.nio.gov.uk/ phase–4–report–on–baton–rounds.pdf. The fifth report, which may also contain material of interest, is due to be published by the NIO in the next few months.
15. Further letter from Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence Further to my letter of 1 February enclosing the first tranche of documents in response to your request for documentation relating to the Armed Forces human rights obligations under international law. I am now able to provide youwith furthermaterial. I attach a summary of my decisions on release and redaction at Annex A and a copy of the documents that I have decided to release at Annex B alongside cover sheets that provide an explanation for those areas that, on balance, I have decided to redact. This information will need to be handled in confidence. Unfortunately, I am not yet able to come to a decision on release for serial 17; because of pending court martial proceedings, there are surrounding legal issues associated with its release that I have yet to resolve. I hope to provide youwith a decision on this remaining documentsoon. 7 February 2006
Annex A to letter dated 7February 2006
Serial Document Title To be released in To be released in Exemption Security Marking to Type of document Full (Yes/No) Part (Yes/No) be handled as 7 The Joint Service Intelligence No Yes Defence Confidential Organisation’s Training Documentation 8 The specific briefs on arrests and Yes No n/a Restricted dealing with detainees in the Iraq- specific operational training package received by members of the armed forces prior to deployment. 3358392023 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 104 Joint Committee on Human Rights: Evidence
17 The directions from the Chief of See covering Joint Operations that hooding was to letter cease in September 2003 21 The (DIS) Standing Instruction on Yes n/a n/a Confidential interviewing detainees issued on 27 August 2004
16. Further letter from Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence Further to my letter of 1 and 7 February enclosing a series of documents in response to your request for information relating to the armed forces’ human rights obligations under international law, I am now able to provide youwith the remaining document:the direction from the Chief of Joint Operations (CJO) that hooding was to cease in September 2003 (serial 17 of your request). I apologise that it has taken some time to provide youwith this document,bu t as I set out in my last letter to you because of pending court martial proceedings, there were legal issues associated with its release that needed to be resolved. I should make clear that in line with the other information I provided you, this document will need to be handled in confidence. I also wanted to clarify some of the issues highlighted in the document relating to the legal advice we received on the practice of hooding to avoid any potential for misunderstanding. The first paragraph of CJO’s note reads: “During the OP TELIC combat phase, the hooding of PWs, internees and detainees by UK forces attracted the attention of the international media and the ICRC and brought with it some adverse criticism. Once this practice was exposed, legal advice at the time was that the practice should stop.” This could have been clearer. The legal advice received by the General OYcer Commanding at the time was that the practice of temporarily obscuring the vision of a detained person by the use of a hood in specific and limited circumstances—those under which UK troops routinely used hooding—is not contrary to the law. However, a policy decision was taken at the time to cease the practice of hooding. Of course, the practice of hooding was then and continues to be unlawful for the purposes of interrogation. UK Armed Forces are not using hooding in any circumstances anywhere in the world. The guidance given to the Armed forces is to this eVect and our revised doctrine on handling of prisoners of war and detainees, which is to be issued in the near future, will reflect this policy. I trust this is helpful. 20 April 2006
17. Memorandum from Rt Hon Adam Ingram MP, Minister of State for the Armed Forces, Ministry of Defence further to oral evidence session of 27 March 2006
Documentation on Human Rights Obligations—Legal Guidance The publication Lord Lester referred to32 at the session is Part III of the Manual of Military Law—“The Law of War on Land” (HMSO 1958). This has been superseded by Joint Service Publication 383 “The Joint Service Manual of the Law of Armed Conflict” (2004). There are two versions of this publication but the substantive content is the same. The first is a loose-leaf binder version for issue to the armed forces. The second is published by Oxford University Press in both hardback33 and softback34 copy. The Manual is, therefore, within the public domain and openly available. The MOD, Joint Doctrine Concepts Centre has also issued Joint Doctrine Note (JDN) 2/05 (July 2005) titled “Prisoners of War, Internees and Detainees.” This is the precursor to a more substantive Joint Doctrine Publication of the same title, expected to be published later this year. JDN 2/05 deals in some detail with the humane treatment of Prisoners of War, Internees and Detainees and highlights the applicable rules of International Humanitarian Law (though it is not intended to deal with interrogation or related matters). The JDN is intended for internal Government use and would not be made widely available in the public domain.
32 Paragraph 248 of the transcript. 33 ISBN 0-19-924454-5. 34 ISBN 0-19-928728-7. 3358392025 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 105
The Committee also asked about the guidance available on the prohibition of the five techniques specified in the Ireland vs UK (1978) case. The details of the prohibition of the five techniques are included in the MOD internal policy document “Guidance on Interrogation and Tactical Questioning—Support to Operations” that was released in November 2005. This policy is in use in all operational theatres. The policy does not specifically refer to the Ireland v UK (1978) case but states that the same five techniques are expressly forbidden. However, in both the Tactical Questioning and Interrogation courses provided only to selected individuals who are to become trained interrogators there is specific reference to the Ireland v UK (1978) case as part of the legal briefings on the courses. The lesson states that the techniques identified within the case are expressly forbidden. The policy document referred to is a Confidential UK Eyes Only document. Although the material that refers to the prohibition of these five techniques is not sensitive, due to the sensitivity of the document as a whole it would not be made public; the same is true for the training course documentation.
Rendition The Committee asked for details of the Government’s discussions with the US Government on the issue of so-called “extra-ordinary rendition”. The Foreign Secretary has made the Government’s position very clear, in Parliament and publicly. We have worked closely with the USA since before September 2001 to achieve our shared goal of fighting terrorism. As part of that close co-operation, we have made clear to the US authorities, including in recent months that we expect them to seek permission to render detainees via UK territory and airspace (including Overseas Territories); that we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations; and how we understand our obligations under the UN Convention Against Torture. The Government is clear that that the USA would not render a detainee through UK territory or airspace (including Overseas Territories) without our permission. US Secretary of State Condoleezza Rice publicly explained the US government’s policy on rendition in her statement of 5 December 2005. The Foreign Secretary has also explained that the Government’s eVorts to counter the threat of international terrorism must, by their nature, involve a degree of confidentiality. Not only must we protect our sources and methods if we are successfully to detect and disrupt terrorist plans and activity but we must also protect our counter-terrorism and wider intelligence relationships with key allies, including the United States, because they are essential to the security of our citizens.
Attenuated Energy Projectiles (AEPs) The Committee asked about the use of AEP rounds or earlier versions outside the UK and if the guidance that governs their use there diVers from that in Northern Ireland. AEP rounds are not used outside of Northern Ireland. Trials have yet to be conducted to confirm acceptable performance in climatic extremes. Older versions of baton rounds known as L21 baton rounds are used outside the UK but are not issued to UK forces as a matter of course. They must be requested when Public Order duties are on a Battlegroup’s statement of requirements. The L21 baton rounds have been issued to troops in Afghanistan and Iraq. The guidance that governs the use of L21 baton Rounds does not alter depending on the Theatre it is used in. There are generic rules of engagement that govern their use. The guidance has had to be modified for the use of AEPs in Northern Ireland, however, to alter the distances it is safe to fire them from. If AEPs are authorised for use in other theatres we would expect the guidance to change accordingly. In all theatres baton rounds must only be used when there is no other less forceful alternative to prevent violent disorder. The senior commander at the scene must issue a warning at the earliest opportunity (unless doing so would risk chance of injury, or troops are under attack). They can only be fired if expressly ordered by the senior commander at the scene, as the minimum force necessary to protect own forces or others under their protection from physical violence.
18. Submission from Amnesty International Amnesty International is writing to youin response to yourcall for eviden ce in connection with your inquiry into the UK’s compliance with, and implementation of, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture). Amnesty International welcomes this opportunity to provide the JCHR with an update to the organisation’s report published on 26 November 2004 and entitled “United Kingdom—Briefing for the Committee against Torture” (AI Index: EUR 45/029/2004) on Amnesty International’s most serious concerns about the UK’s compliance with the Convention against Torture. Amnesty International wishes to draw the JCHR’s attention, in particular, to the following. 3358392026 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 106 Joint Committee on Human Rights: Evidence
Amnesty International’s Concerns Arising from the UK Authorities’Measures and Proposed Measures in the Aftermath of the July 2005 Bombings in London.35 On Friday 5 August 2005, Tony Blair, the Prime Minister, announced certain measures that the UK authorities would be proposing in the aftermath of the July 2005 bombings in London. The Prime Minister indicated that such proposals as “necessary” were being “urgently examined” and would be forthcoming. He also stated that administrative measures which do not necessitate primary legislation would be put in place “with immediate eVect”. Amnesty International is deeply concerned that some of the measures that the UK authorities are seeking to implement are inconsistent with the independence of the judiciary, and undermine the rule of law and fundamental human rights, including: — the absolute prohibition of torture or other ill-treatment, and the principle inherent to such prohibition according to which a person should never be sent anywhere where she or he risks being subjected to torture or other ill-treatment—the principle known as non-refoulement enshrined in, inter alia, Article 3 of the Convention against Torture; — the right to seek and enjoy asylum, including the right of all persons who seek international protection to have their asylum claim individually and fully considered in fair and satisfactory procedures consistent with international human rights and refugee law and standards. Any intention to exclude someone from refugee status should be considered in the context of regular refugee status determination procedures, and should be subject to fundamental principles of procedural fairness, including the right to appeal against the decision to exclude, and to remain in the UK while that appeal is being considered. Specifically, the right not to be subjected to torture or other ill-treatment, which includes the right not to be removed to a country or territory where one would be at risk of such treatment—the protection against refoulement—applies to all individuals, irrespective of whatever oVence they may have committed or are suspected of having committed, and is a rule of customary international law binding on all states. It has also been codified in treaty law, including in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), most provisions of which have been given eVect in UK law through the Human Rights Act 1998. Amnesty International is also deeply disturbed by the Prime Minister’s remarks about entirely warranted decisions of the domestic courts to strike down deportation orders in cases of individuals whom the UK authorities intended to deport to countries where they would have been at risk of torture or other ill- treatment. Amnesty International considers that, rather than attacking the decisions of the judiciary and the rule of law in this way, the Prime Minister should commit his government to compliance in this regard with the UK’s obligations under international law. Amnesty International is also gravely concerned about the “new approach” signalled by the Prime Minister in his statement with respect to deportation orders. According to such “new approach”, when the UK authorities wish to expel a person to a country where there is substantial risk that she or he would be tortured or otherwise ill-treated, the UK authorities would obtain so-called “diplomatic assurances” from the authorities of the country to which the person concerned is to be sent—or would negotiate memoranda of understanding with the authorities of that country—to the eVect that the individual would not be tortured or otherwise ill-treated after return to that country. The organisation considers that both such “diplomatic assurances” and memoranda of understanding would amount to a circumvention of the principle of non-refoulement which is part and parcel of the absolute prohibition of torture or other ill-treatment. Accordingly, Amnesty International does not accept that diplomatic assurances or memoranda of understanding can ever relieve the sending state from its obligation not to forcibly return a person to a country or territory where they would be at risk of torture or other ill-treatment. In addition, Amnesty International deplores any possible future attempt to amend the Human Rights Act 1998 in the way foreshadowed by the Prime Minister as a way of purportedly obviating the obstacles which the courts have put in the way of the Prime Minister and his government with respect to deportations. The right to be free from torture or other ill-treatment, and the principle of non-refoulement inherent to such right—is inalienable, inviolable and non-derogable. Any attempts by the UK authorities to circumvent the jurisdiction of the courts domestically and prevent them from upholding such a fundamental right would also clearly fall foul of the UK’s obligations under international law, including the Convention against Torture. The organisation is also extremely concerned at the Prime Minister’s announcement that “anyone who has participated in terrorism, or has anything to do with it anywhere will be automatically refused asylum in the country”. In light of Amnesty International’s long-standing concern about the vagueness and breadth of the purported definition of “terrorism” enshrined in the Terrorism Act 2000, the organisation is
35 Please note that Amnesty International hopes to be able to submit its concerns in response to the JCHR’s call for evidence on the human rights compatibility of the provisions of the draft Terrorism Bill 2005 published on 15 September 2005, as well as the JCHR’s inquiry on “Counter-terrorism Policy and Human Rights”. Therefore, the organisation is confining its comments in this letter to concerns arising in respect of the UK obligations under the Convention against Torture, which, are the subject of the present JCHR inquiry. 3358392026 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 107
concerned that the Prime Minister’s announcement amounts to circumventing international refugee law. Amnesty International is concerned that persons may be excluded, who have been involved in acts of armed political groups or any other political activities which are not of such nature and severity that they currently should be excluded from refugee status under the 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol. The limited grounds for exclusion under the Refugee Convention include crimes against peace, war crimes, crimes against humanity and non-political crimes committed outside the country of asylum prior to admission to that country as a refugee. In any event, even where someone is excluded from refugee status under the Refugee Convention, the UK authorities are nonetheless bound by customary international law and provisions set out in, inter alia, the Convention against Torture and the ECHR, to respect the principle of non-refoulement, outlined above.
So-called “Diplomatic Assurances” The absolute prohibition of torture or other ill-treatment is a norm of customary international law, binding on all states. The absolute prohibition is also enshrined in treaties to which the UK is a party including Article 7 (and 4) of the International Covenant on Civil and Political Rights (ICCPR), Article 3 (and 15) of the ECHR, Article 37 of the Convention on the Rights of the Child and the Geneva Conventions of 1949 and its Additional Protocols of 1977. This prohibition encompasses an absolute prohibition on the forcible return of a person to any state, where there is a risk that they would be subjected to torture or other ill-treatment. As stated by the Council of Europe’s Commissioner for Human Rights, “the weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances there is clearly an acknowledged risk of torture and ill-treatment.” The organisation considers that diplomatic assurances are both evasive and erosive of the absolute legal prohibition of torture or other ill-treatment in general and of the prohibition of refoulement in particular, in addition to being inherently unreliable, morally questionable and in practice ineVective. Amnesty International considers that before a person is forcibly returned to a particular country, s/he should have access to a competent, independent and impartial court, which should make the final decision, in a fair proceeding, about the presence or absence of such a risk. In the face of allegations that a person will be at risk of torture or other ill-treatment in the country to which they will be sent, the burden of proof should be on the sending authorities to show that they would not be at risk. The court should require the sending authorities to present reliable and credible evidence as to the absence of a risk. Diplomatic assurances with respect to torture or other ill-treatment cannot and should not be compared with Diplomatic Assurances sought in cases in which a person risks the death penalty. Unlike torture or other ill-treatment, the death penalty is not per se prohibited under international law, and states carry it out openly as a punishment, under their own laws. Amnesty International opposes the death penalty absolutely, but as long as the death penalty is a lawful sanction under international law, diplomatic assurances with respect to the death penalty simply acknowledge the diVerent legal approaches of two states and make an exception to one state’s declared policies to accommodate the concerns of the other. Torture or other ill-treatment, in contrast, are practised almost invariably by states which deny practising them. They torture or otherwise ill-treat in secret and in violation of legally binding agreements which they joined, as well as of their own laws. It would be absurd for a sending state to make even a legally binding “diplomatic assurances” agreement, (let alone accept lower-level assurances) with a receiving state, where the only reason to make this agreement is the latter state’s failure to live up to other binding agreements, in human rights treaties, on the very same issue. It should be noted that the distinction is found in various Council of Europe treaties which make provision for obtaining diplomatic assurances in cases of a risk of imposition of the death penalty but make no such provision in cases where there is a risk that the person to be returned faces torture or other ill-treatment. In light of the above, Amnesty International is deeply concerned at the UK authorities’ announcement in August of this year of the conclusion of a so-called “Memorandum of Understanding Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Hashemite Kingdom of Jordan Regulating the Provision of Undertakings in Respect of Specified Persons Prior to Deportation”, as well as the UK authorities’ ongoing attempts to conclude further similar agreements with countries such as Egypt and Algeria, among others.
Information Which has Been or May have Been Obtained as a Result of a Violation of the Absolute Prohibition of Torture or Other Ill-treatment Amnesty International oppose the use, reliance, proVering and admission in any proceedings of information which has been or may have been obtained as a result of a violation of the absolute prohibition of torture or other ill-treatment, by or against any person anywhere, except in proceedings against a person suspected of responsibility for a violation of the prohibition, as evidence that such information was obtained. 3358392026 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 108 Joint Committee on Human Rights: Evidence
As the JCHR may know, Amnesty International, together with 13 other national and international organisations, has been granted leave to jointly intervene in the conjoined appeals before the Law Lords in the cases of A and others v Secretary of State for the Home Department and A & Others (FC) and Another v Secretary of State for the Home Department from a Court of Appeal of England and Wales Judgment of 11 August 2004 (Law Reports—Court of Appeal: [2004] EWCA Civ 1123; [2005] 1 WLR 414). The decision by Amnesty International and the other organisations to intervene in this appeal is motivated by grave concern about the undermining and circumvention of the absolute prohibition of torture or other ill- treatment and the attendant obligations that give it eVect. Amnesty International is concerned that the UK is increasingly resorting to measures that eVectively bypass its obligations in respect of the absolute prohibition of torture or other ill-treatment. Since the November 2004 issuance of the Committee against Torture’s Concluding Observations upon their examination of the UK’s Fourth periodic report on the measures taken to implement the provisions of the Convention against Torture, the UK authorities have continued to assert their right to use statements in judicial or other proceedings obtained as a result of a violation of the prohibition of torture or other ill- treatment so long as UK agents have neither directly procured such statements or connived in their procurement. This interpretation was condemned by the UN Committee against Torture in November 2004. It recommended that the UK authorities ensure that they will not rely on or present “evidence” obtained through torture in any proceedings. Rather than complying with the specific recommendation of the Committee against Torture in respect of the use of statements obtained as a result of a violation of the prohibition of torture or other ill-treatment, the UK’s Secretary of State for the Home Department will instead seek to defend before their Lordships the propriety of the above-mentioned Court of Appeal’s ruling. Amnesty International considers that the UK authorities’ position on the use of evidence procured through torture or other ill-treatment is eVectively circumventing the absolute prohibition of such treatment, rather than fulfilling the UK’s international obligations under the Convention against Torture and other relevant international human rights law and standards. The organisation considers that such obligations include the taking of eVective measures to prevent torture or other ill-treatment wherever it occurs, including by applying an exclusionary rule to prevent such information from being adduced in judicial or other proceedings. The UK’s stance has given a “green light” to torturers around the world, whose unlawful conduct would find not only an outlet but also a degree of legitimacy in UK courts. Amnesty International also considers that the use as evidence in legal proceedings of statements obtained as a result of a violation of the prohibition of torture or other ill-treatment would bring the administration of justice into disrepute, and provide a cloak of legality for that which is unlawful. Finally, Amnesty International is concerned that the UK authorities’ position has eVectively brought about a conflict between the UK’s international obligations flowing from the prohibition of torture or other ill-treatment and domestic law.
The Right to Mental and Physical Integrity of a Number of People Currently Detained on the Basis of Deportation Orders Following the reaching of the above-mentioned memorandum of understanding with Jordan, and pursuant to the UK authorities’ ongoing attempts to conclude others with at least Algeria and Egypt, at least nine people were arrested in August of this year. Amnesty International is deeply concerned at the mental and physical health status of these people who were held until March 2005 under Part 4 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA), were then subjected from March to August 2005 to so-called “control orders” under the Prevention of Terrorism Act 2005 (PTA), and since August 2005 have been detained on the grounds that their removal from the UK will take place within a reasonable time and that the UK authorities are taking steps with due diligence to eVect such removals (that is, thanks to the reaching of the above-mentioned memorandum of understanding with Jordan and the UK authorities’ ongoing attempts to agree further similar agreements with Egypt and Algeria, at least). In light of public statements issued by Birnberg Peirce & Partners in August 2005, Amnesty International understands that seven men of those represented by the above-mentioned firm of solicitors were suddenly arrested on 11 August 2005 and have since been detained separately very far away from their families (for those who are married), their lawyers and crucially their doctors, in Long Lartin prison in Worcestershire and Full Sutton prison near York. The organisation further understands that one of them was taken from the psychiatric hospital where he had been an inpatient, since his release from Broadmoor Hospital, under a “control order” on 11 March of this year. This individual is one of two men who were moved from Belmarsh prison to Broadmoor Hospital in 2004 after three years of indefinite detention without charge or trial and a dramatic deterioration of their mental and physical health. 3358392026 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 109
Amnesty International shares the solicitors’ deep concern at being informed that those detained at Long Lartin prison were placed on suicide watch. These include a third man who had been released from Belmarsh and subject to virtual “house arrest” in 2004 because his mental health had been so aVected by the protracted incarceration without charge or trial. To Amnesty International’s knowledge most, if not all of these men, are asylum-seekers or refugees; so too are their families; and most of them are victims of torture. According to the information made public by their solicitors, those detained at Full Sutton prison were held in the so-called Special Secure Unit that had been closed down a decade ago on the basis that it was unfit for human habitation. Reports indicate that cells in that unit are even smaller than those in Belmarsh prison. The windows look out onto an exercise yard so dark that lights have to be kept on at all times. In August 2005, the above-mentioned solicitors stated that the unit was literally covered in cobwebs and that it remained unfit for humans. Amnesty International is deeply concerned at what appears to be the UK authorities’ continued disregard of the recent serious psychiatric history of each of these individuals and the reasons for that history, and at the consequences which their renewed detention will almost inevitably have on their mental and physical health.
Amnesty International’s Concerns about the Detention of People who Have Sought Asylum Amnesty International has long been concerned about the detention of people who have sought asylum in the UK. In June 2005, the organisation published a 94-page report entitled “United Kingdom—Seeking asylum is not a crime: detention of people who have sought asylum” (AI Index: EUR 45/015/2005) which we have attached to this letter for your ease of reference. The above-mentioned report examines the increased use of detention both at the beginning and at the end of the asylum process and questions whether the UK is meeting its obligations with respect to the right to liberty and the right of people to be treated with dignity and humanity under international refugee and human rights law and standards. Amnesty International documented the hidden plight of those who have sought asylum in the UK and are detained solely under Immigration Act powers. Detention is an extreme sanction for people who have not committed a criminal oVence. It violates one of the most fundamental human rights protected by international law, the right to liberty. Amnesty International is concerned at the denial of justice suVered by many people as a result of their detention being in many cases eVectively arbitrary and, therefore, unlawful. Individuals are often taken into detention on the basis that a bed is available within the detention estate, rather than on considerations of necessity, proportionality and appropriateness. In light of the above, the organisation is concerned at the human cost of the increased use of detention in the UK. Amnesty International considers that detention is not being carried out according to international standards, is arbitrary and serves little if any purpose at all in the majority of cases where measures short of detention would suYce. Amnesty International found that many people were detained far away from their families or friends, in often remote locations and in grim, prison-like establishments. Some detention facilities are former prisons, others are purpose built as removal centres. At the time of being taken into detention, the individuals concerned were not told for how long they would be detained. Those interviewed told Amnesty International that while in detention they felt abandoned and demoralised. Several of them complained of being subjected to racist and other verbal abuse while in detention. Some interviewees experienced great diYculty in relaying their stories even months after their release from detention. A number of them appeared to be suVering from severe depression. In theory, the UK has a policy of non detention of particular vulnerable groups, including torture survivors. However, Amnesty International is concerned that those whose age or physical or mental health or circumstances make them unfit for detention are nevertheless being detained.
Amnesty International’s Concerns about the UK’s Attempt to Circumvent its International Obligations under the Convention against Torture with Respect to the Conduct of UK Agents and Troops Abroad As detailed in its above-mentioned briefing to the Committee against Torture, Amnesty International has expressed serious concern, inter alia, about allegations of unlawful killings, torture or other ill-treatment and other violations of international human rights and humanitarian law by UK forces at the time when the UK was recognised as an occupying power in Iraq, namely prior to the oYcial handing of power to the Interim Iraqi Government in June 2004.36 Amnesty International notes that in its Concluding Observations in November 2004 the Committee against Torture expressed concern at the UK authorities’ assertion that certain provisions of the Convention against Torture could not be applied to actions of the UK in Afghanistan and Iraq. The Committee stated that the Convention applied to all areas under the de facto control of the UK authorities.
36 See in particular pp 26 to 33. 3358392026 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 110 Joint Committee on Human Rights: Evidence
Similarly, the Committee against Torture recommended that the UK government “should ensure that the conduct of its oYcials, including those attending interrogations at any overseas facility, is strictly in conformity with the requirements of the Convention [against Torture] and that any breaches of the Convention that it becomes aware of should be investigated promptly and impartially, and if necessary the State party should file criminal proceedings in an appropriate jurisdiction”. Amnesty International continues to be concerned about the UK authorities’ assertion that human rights law (including key provisions of the Convention against Torture) does not bind the conduct of UK agents and armed forces in Iraq and Afghanistan. 30 Sepember 2005
19. Submission from British Irish Rights Watch
Introduction British Irish rights watch (BIRW) is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available free of charge to anyone whose human rights have been aVected by the conflict, regardless of religious, political or community aYliations, and we take no position on the eventual constitutional outcome of the peace process. We welcome this opportunity to make a submission to the Joint Committee on Human Rights concerning the UK Government’s response to the United Nations Committee Against Torture’s, Concluding Observations on the UK’s Fourth Periodic Report. We have only commented on the aspects of CAT’s recommendations which fall within our remit. This submission comments upon: — Use of less lethal force — RUC and the PSNI — Human Rights Act — Police Ombudsman — Northern Ireland Human Rights Commission — Use of evidence obtained by torture — Repeal of emergency laws — Prisons — Investigations, inquests and inquiries — Changes to policy and the “war on terror”
Consultation and Transparency British Irish rights watch would like to draw the Joint Committee’s attention to the fact that the Government has yet to publish a response to the CAT Concluding Observations and Recommendations. We are thus unaware of the manner in which the Government is addressing the concerns and recommendations of the Committee against Torture. BIRW is naturally disappointed that the Government has not chosen to share its response publicly. We are also disappointed that the Government is waiting until mid-October before issuing a response to the eight issues raised by the Committee against Torture; especially considering the deadline for submission to the Committee is 24 November. We do not believe this allows NGOs an adequate response time to the Government’s findings. In its Fourth Periodic Report, the UK government stated: “In preparing this report the Government sought the views of the Forum on the United Kingdom’s compliance with this Convention.” Membership to the Ministerial/NGO Forum on Human Rights is by invitation only, and the views of non-participating NGOs are excluded from the consultation process. BIRW, in conjunction with several other NGOs had previously raised the issue of the denial of access to the UK’s written response to the Committee against Torture’s List of Issues during a meeting in London with UK oYcials, which aVected all of the NGOs making submissions to the Committee. Several of the NGOs met with representatives of government departments on 26 October 2005 to discuss the UK’s report to the Committee and the concerns that they would be raising in the NGO submissions. At this meeting, the UK informed us that the UK’s written response to the List of Issues could not be provided to us at that time, due to continually changing facts and circumstances that would need to be reflected in the final document. When we arrived in Geneva, some of us were told that at that stage we could not be given a copy of the 3358392027 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 111
written response to the List of Issues, because it had been submitted to the Committee and was therefore the “property of the Committee”. We were told that it would therefore not be appropriate for the UK to give the document to the NGOs until after the Committee’s examination of the UK’s report had commenced. When we relayed this information to individual Committee members, they expressed surprise that the UK’s written response to the List of Issues had not been conveyed to us at the same time as it had been given to the Committee itself. They, and we, were of the view that, had the NGOs had access to the written response earlier, this would have been to the benefit of the examination process and the constructive dialogue that the Committee seeks to conduct with the Member State. Our concern about this denial of access to the written response to the List of Issues was compounded when, on 18 November, the UK stated to the Committee that, “the Committee might wish to give some consideration to encouraging States Parties to share their responses to the list of issues with members of civil society—as we have done. Where this is not possible, there is a risk that the examination process can lack transparency for members to civil society.” Given that this did not reflect the reality of what happened, this statement was misleading and the transparency of the examination process was indeed jeopardised. All of the NGOs who made submissions to the Committee acted in an open and transparent manner. Submissions were made available publicly, and in many cases several weeks before the examination took place. We are therefore greatly concerned that our good faith has not been reflected in the actions of the UK government. BIRW hopes that in future examinations of the UK by the various UN human rights bodies, NGOs will be aVorded the opportunity to see the written responses of the UK to the Lists of Issues and all other documents submitted to the particular examining body well in advance. In this way, NGOs can more eVectively assist the government and the UN in the task of reviewing the implementation of the various international human rights instruments.
Executive Summary British Irish rights watch believe that while the human rights situation in Northern Ireland has improved in recent years, there remains substantive work to be done. UN Committee against Torture’s Concluding Observations and Recommendations on the UK outline some of the issues where attention needs to be focused. BIRW has chosen to comment on those issues which fall directly under our mandate, both related to Northern Ireland, and to the UK as a whole. Hence, we have examined: the use of less lethal force; the RUC and the PSNI; the Human Rights Act; the work of the Police Ombudsman; the Northern Ireland Human Rights Commission; the use of evidence obtained by torture; the repeal of emergency laws; the state of Northern Ireland’s prisons; investigations, inquests and inquiries; and changes to Government policy and the “war on terror”.
Less Lethal Force The use of less lethal force in Northern Ireland has become particularly pertinent since the CAT report, with communal riots in both July and September 2005. Our key concern is the introduction and use of a new kind of plastic bullet, the AEP. While we are encouraged by the structural and cultural changes which appear to have taken place within the police force regarding the use of plastic bullets we continue to condemn their use. In particular, the very high numbers of AEPs deployed in the four days of rioting in 2005, which was almost the same as the number of plastic bullets deployed in the near-four-year period from 1 January 1999 to 31 October 2002, when an unoYcial moratorium on their use came into force. The Police Service of Northern Ireland (PSNI) have a wide variety of technology in their arsenal, including CS spray and water cannon. While British Irish rights watch fully acknowledges that the levels of violence within Northern Ireland are higher than those in Great Britain, and the PSNI often face challenging and serious situations, we urge strong caution in the deployment of CS spray and water cannon in crowd control situations.
RUC and the PSNI The reforms implemented by the Patten Commission have improved the make-up, nature and operation of the PSNI. However, we believe that the PSNI needs to make further improvements in areas such as training, before it can be concluded that the PSNI is a rights-based force. In particular, we raise concern in this submission about the levels and quality of human rights training for oYcers, which we feel is failing to provide a decent standard of human rights awareness amongst staV. We also raise concern by the culture of protection and impunity which exists for police informers.
Human Rights Act British Irish rights watch has been particularly concerned by recent Government moves to derogate from the European Convention on Human Rights. We draw the Joint Committee’s attention to the Prime Minister’s announcements on amending the Human Rights Act. We believe that such changes will have a serious impact upon the standard of human rights in the United Kingdom. The concept of returning 3358392027 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 112 Joint Committee on Human Rights: Evidence
individuals to states where they almost certainly face torture, and/or cruel, degrading and inhumane treatment, serves greatly to undermine the UK’s role as an opponent of torture, and a respecter of human rights.
Police Ombudsman The oYce of the Police Ombudsman has contributed to the cultural changes within the PSNI, including the development of more open investigations, and attempts to operate as a police force for all of Northern Ireland’s communities. While British Irish rights watch views the creation of the oYce of the Police Ombudsman as a positive development, we are concerned by some elements of her mandate. In particular, the Ombudsman’s exclusion from the investigation of the use of potentially lethal force by the army in public order situations, despite the fact that the police have primacy over army operations in such scenarios; this undermines the principle of transparency and accountability. Secondly, the fact that the Police Ombudsman is prevented from investigating the behaviour of retired police oYcers is of concern, especially since a number of the complaints arise from the 1970s and 1980s, and the police oYcers involved have now retired.
Northern Ireland Human Rights Commission The establishment of the Northern Ireland Human Rights Commission was viewed positively by British Irish rights watch. However, we have some ongoing concerns about its operation, and lack of support from the Government. British Irish rights watch draws the Joint Committee’s attention to the limited powers of the NIHRC which do not extend to compelling the attendance of witnesses or the production of documents; similarly, we are concerned by the fact that NIHRC has been prevented from visiting places of detention by the Government. The Commission has been further weakened by issues concerning its membership. While these seem now to be resolved, in that the Commission is operating at full capacity, British Irish rights watch has concerns regarding the human rights credentials of certain appointees.
Use of Evidence Obtained by Torture The admissibility of evidence which may have been elicited under torture is currently under consideration in a case before the House of Lords. British Irish rights watch strongly opposes the use of “torture evidence” in the court system. We believe this contravenes both domestic and international law, and undermines the prohibition on torture and ill treatment.
Repeal of Emergency Laws BIRW has maintained a constant interest in the use of emergency legislation to govern Northern Ireland since its inception. BIRW has never accepted the fact that Northern Ireland needed specific emergency laws. While British Irish rights watch welcomes the enactment of the Normalisation Programme, as set out recently, we remain concerned that the recent upsurge in violence may be used to stall the process. We are also highly concerned that the legislation proposed by Tony Blair regarding issues of terrorism, detention and courts, will merely replace the emergency laws in the Northern Ireland statute book; ensuring that Northern Ireland is again subject to restrictive legislation.
Prisons The Northern Ireland prison system, though slowly improving, is still plagued by consistent and essentially preventable problems. In particular, British Irish rights watch is concerned by the disparity of treatment between separated prisoners and the rest of the prison population. We believe that all prisoners should have access to the same rights, for instance, with regard to education. For a number of reasons, including the limitations of the prison estate, and a lack of adequately trained and representative prison staV, the quality of care provided by the Northern Ireland Prison Service for both separated and female prisoners is falling below acceptable standards. British Irish rights watch highlights the need for extensive action on this issue.
Investigations,Inquests and Inquiries The impact of several key court decisions, eg the McKerr case, combined with the introduction of the Inquiries Act 2005 and the continued failure to reform the Northern Ireland inquest system, has ensured that the Government is consistently failing to be compliant with Article 2 of the European Convention on Human Rights. This failure has meant that in cases such as the deaths of Patrick Finucane, and Billy Wright, both the families of the deceased and the wider public have yet to find justice. British Irish rights watch believe that real and immediate changes need to be made to both the Inquiries Act, and to the wider system of investigating deaths. 3358392027 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 113
Changes to Policy and the “War on Terror” The death of Jean-Charles de Menezes in July 2005 has highlighted the need for a public review of the policies employed by the Government, especially the use of a “shoot to kill” policy for suspected suicide bombers. British Irish rights watch believe that curtailing civil liberties, and human rights, in the name of the “war on terror” is both illegitimate and counter-productive. We encourage the Joint Committee to make a robust examination of Government policy on this issue.
Use of Less Lethal Force CAT Conclusions and Recommendations “B. Positive aspects 3.(a) the confirmation that no baton rounds have been fired by either the police nor the army in Northern Ireland since September 2002.” British Irish rights watch has welcomed the fact that no plastic bullets were fired between September 2002 and July 2005. We feel this demonstrates that the challenges of public disorder in Northern Ireland can be successfully met without recourse to plastic bullets. We were therefore particularly disappointed by several recent developments in the use of less lethal force in Northern Ireland. — Introduction of Attenuating Energy Projectiles (AEPs) in June 2005 — Use of AEPs in July 2005 — Use of AEPs and live rounds in September 2005 — Children/young people and AEPs — Use of water cannon — Use of CS incapacitant spray — Use of tasers
Introduction of Attenuating Energy Projectiles (AEPs) in June 2005 While British Irish rights watch was encouraged that the CAT Recommendations and Conclusions (1998) called for the withdrawal of plastic bullets, we remain consistently frustrated by the Government’s failure to outlaw their use.37 Since 1972, plastic bullets have resulted in 17 fatalities and many hundreds of injuries.38 In 1999, the Patten Commission recommended that “an immediate and substantial investment be made in a research programme to find an acceptable, eVective and less potentially lethal alternative to the PBR [plastic baton round].”39 The result of this research however, has been the formal introduction of the Attenuating Energy Projectile (AEP) which is essentially a soft-nosed plastic bullet. In our submission to the UN Committee against Torture (2004), we raised our concerns about the AEP, which we believe has a similar capacity to the plastic bullet (LA21A1) for causing injury or death. The Oversight Commissioner for Northern Ireland has stated: “the AEP remains a projectile weapon, albeit safer, and is a replacement [of the plastic bullet] not an alternative.”40 The use of the AEP is incompatible with Patten’s recommendations for finding a less lethal alternative to the plastic bullet. A DSAC Sub-Committee, part of the Ministry for Defence, investigating the injury potential of the AEP stated: “The risk of impact to vulnerable areas such as the head and the chest will not exceed the already low risk of such impacts from the L21A1.”41 It went on to say: “The clinical impact of the reduction in damage to the brain and overlying skull cannot be assessed confidently because of limitations in current models for this type of impact.”42 The absence of data on this aspect of the AEP is of concern to BIRW. We are also concerned that while the AEP may minimise the risk of head injuries, it is still a potentially lethal weapon, and has a greater potential to lodge in the wound than an L21A1. We would like to draw the Joint Committee’s attention to the oYcial guidelines on the deployment of AEPs, which state that the minimum distance for the use of AEP to target is one metre.43 We believe that this change in the guidelines, (the firing of plastic bullets required a distance of at least 20m) has very serious implications for the right to life in Northern Ireland; because the potential for causing serious injuries or death is increased by firing at such a short range.
37 Recommendations, point (d). Conclusions and Recommendations of the Committee against Torture. United Kingdom of Great Britain and Northern Ireland and Dependent Territories. November 1998. 38 In addition, in August 2004, Dominic Marron died, 23 years after having been struck in the head by a plastic bullet. His family believes that his death was a direct result of the injuries he sustained from the plastic bullet. Plastic Bullets claims another life. Press Release. 23.08.04. Relatives for Justice. http://www.relativesforjustice.com/pressrelease/230804—dominicmarron.htm 39 A New Beginning: Policing in Northern Ireland. The Report of the Independent Commission on Policing for Northern Ireland, September 1999, (hereafter, Patten report) para 9.15. 40 OYce of the Oversight Commissioner, Report 11. September 2004. p 52. 41 Statement on the Comparative Injury Potential of the Attenuating Energy Projectile (AEP) L60A1 and the L21A1 Baton Round. para 16. DSAC Sub Committee on the medical implications of less—lethal weapons (DOMILL). 42 Ibid para 22. 43 Notes for guidance on Police use of Attenuating Energy Projectile. Amended. 16.05.05 www.acpo.police.uk. 3358392028 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 114 Joint Committee on Human Rights: Evidence
All cases of AEP/plastic bullet use are automatically referred to the Police Ombudsman of Northern Ireland for investigation.44 In all cases the Police Ombudsman has found their use to be fair and proportional. Although the Police Ombudsman has on occasion made recommendations for better police practice, she has found every single firing that she has examined to have been lawful, proportionate, and justified. This smacks of rubber-stamping. The solicitors’ firm, Kevin R Winters & Co, reported injuries suVered by their clients from being hit by plastic bullets on 13 June 2001, 14 June 2002, 28 August 2002, and 29 August 2002. The firm has also reported serious injuries suVered on other dates, such as a youth worker who was trying to keep the peace, whose right upper arm was fractured in three places by a plastic bullet on 14 May 2002. The victim needed an operation to insert plates and screws and has suVered post-operative radial nerve palsy and dropped wrist.45 Since the Police Ombudsman has not reported on these incidents, it can only be assumed that the plastic bullets were fired by soldiers, over whom she has no jurisdiction. BIRW is concerned that an objective and independent investigation into each case of AEP/plastic bullet use is not being achieved. We are also disappointed that the Police Ombudsman considers AEPs to be a less lethal option than plastic bullets.46 We are concerned that her statement on this issue has impinged upon her ability to carry out fair and impartial investigations into their usage.
British Irish rights watch ask the Joint Committee to seek assurances that the Police Ombudsman’s statements on AEPs have not and will not prejudice her investigations into their usage. We are also concerned by the fact that some of the AEPs/plastic bullets deployed in Northern Ireland were fired by the army; indeed the majority of AEPs deployed in September 2005 were by the army. The nature of the Police Ombudsman’s remit prevents her from investigating such usage. While the army does have an investigatory body, relatively limited critical analysis is applied to the deployment of AEPs and such findings are not made public. The Independent Assessor of Military Complaints Procedures was charged with investigating a series of plastic bullet deployments from 2001–02. His recommendations did point towards a need for accountability and scrutiny. For instance, he advocated that: “experienced evidence- gathering teams from the RMP [Royal Military Police] using video cameras should be used when rioting is anticipated.”47 However, BIRW do not believe that these recommendations go far enough. The army itself has chosen not to incorporate the Independent Assessor’s recommendations into their guidelines for the firing of plastic bullets.48 The role of the army in Northern Ireland is to support the police and the police have primacy over operations. It is thus of grave concern that AEPs can be deployed by the army without any structure for independent investigation. There is a danger that because of this omission, moves made by the Police Service of Northern Ireland (PSNI) towards human rights compliance will be undermined. Within the PSNI itself, the role of the Police Ombudsman in investigating AEP/plastic bullet usage appears to be acting as a deterrent. The Chairman of the Police Federation of Northern Ireland suggests “. . . a side-eVect of the post-incident scrutiny of the Police Ombudsman’s OYce is an unwillingness among many rank and file oYcers to be a trained baton gun user.”49 BIRW views this as encouraging; but the general attitude expressed within the article is very supportive of the continued deployment of AEPs and we feel that this is of concern. We are however encouraged by the attitude exhibited by police oYcers on the ground in July 2005—where the adherence to a strict chain of command would appear to have militated against hasty or over-reactive use of AEPs.50 British Irish rights watch draws the Committee’s attention to the relative absence of public consultation regarding the introduction of the AEP. Approval for the introduction of AEPs was granted on 7 April 2005 and they were made available to firearms oYcers in England, Wales and Northern Ireland on 21 June 2005.51 As far as BIRW can ascertain from Policing Board documents, there does not seem to have been a widespread or in-depth review process. BIRW did make a submission to the Board but an opportunity to do so was only presented after consistent campaigning by concerned human rights groups. We feel that a decision such as this should have been opened to wider public consultation. Controversy surrounded the introduction of AEPs. A number of human rights groups took the view that the Chief Constable could not purchase AEPs without consulting the Policing Board, because they could be considered as novel and/or contentious items. However, after taking legal advice, the Policing Board seems to have concluded that the Chief Constable was only under a duty to notify them of any such
44 Henceforth known as Police Ombudsman. 45 Paraphrased from Plastic Bullets. British Irish rights watch. September 2005. 46 Annual Report and Statement of Accounts, April 2004 to March 2005. OYce of the Police Ombudsman. p 14. http://www.policeombudsman.org/publicationsuploads/Annual%20Report%202004-5.pdf 47 Paraphrased from Plastic Bullets. British Irish rights watch. September 2005. 48 See Ibid. 49 Intent on Injuring Police—PoliceBeat Editorial, August 2005. Police Federation of Northern Ireland. http://www.policefed- ni.org.uk/aug05.htm 50 A police oYcer is quoted as saying: “Myself and my colleagues are more fearful of senioroYcer’s decisions than the rioters themselves”. “PSNI oYcers ‘will die’ in Street Riots”. Newsletter. 29.07.05. 51 Ministers back “less lethal plastic bullet”. Ulster Television. 04.04.05. 3358392028 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 115
expenditure, and they do not have the power to approve or disapprove his decision to deploy AEPs, or, presumably, any other weapon. If this is true, then it is a matter of grave concern, given the important role played by the Policing Board in ensuring that the PSNI complies with human rights standards52. BIRW ask the Joint Committee to encourage the Government to carry out a full review relating to the addition of AEPs to the PSNI’s arsenal. British Irish rights watch would like to raise concern about standards applied to AEP/plastic bullet usage in Northern Ireland. The Policing Minister for the UK, Caroline Flint, stated when AEPs were introduced that the “AEP will be used only in accordance with guidance which is intended to provide authorised firers with a less lethal option in situations where they are faced with individual aggressors whether such aggressors are acting on their own or as part of a group. It is not a crowd control technology; it is designed to be used against specific individuals in a variety of scenarios.”53 Indeed plastic bullet usage elsewhere in the UK has been solely against individuals. In her annual report, the Police Ombudsman argues for the deployment of AEP/plastic bullet in cases where individuals cannot be contained by CS spray, and where, in Northern Ireland, there would otherwise be recourse to lethal force.54 In Northern Ireland, AEPs and their predecessor plastic bullets have consistently been used as a method of crowd control and, indeed, the guidelines and policy on their use in Northern Ireland clearly state that they can be used to restore public order, (in other words, crowd control).55 BIRW is concerned about the apparent double standards which exist regarding less lethal force and crowd control, and the disparity in practice between Scotland, England and Wales, and Northern Ireland. The Committee against Torture clearly states that AEPs/plastic bullets should not be considered a method of crowd control. Their use for crowd control indicates a disregard for human rights in Northern Ireland. British Irish rights watch does not consider AEPs to be a less lethal alternative to plastic bullets. British Irish rights watch urges the Joint Committee to ask the Government to ban AEPs, in line with the 1998 CAT recommendations.
Use of AEPsinJuly 2005 We know that public disorder situations in Northern Ireland can be controlled without resort to AEPs/ plastic bullets. We have seen this in the approach taken by the Commander of the Derry police force, whose force has not used plastic bullets/AEPs for the last seven and a half years.56 We have also seen this during the Ardoyne parade and riots of July 2004. On this latter occasion, the PSNI and army used alternative methods of containing the crowds of rioters. A report issued by the Human Rights Advisors to the Policing Board on the events in the Ardoyne (2004) concluded that proportional force had been used.57 British Irish rights watch was disappointed to see the deployment of AEPs in a public disorder context, just three weeks after their introduction into Northern Ireland. On 12 July 2005 severe rioting broke out on the return journey of the Orange Order Parade, in the Ardoyne shops area. Between 80 and 100 police oYcers, eight members of the public, two ambulance staV and two journalists were injured; nine blast bombs and a number of petrol bombs were thrown at police.58 The police fired 22 AEP rounds. A PSNI statement indicated that deployment had been justified after “police came under sustained attack for a number of hours from a crowd throwing missiles.”59 Four men have been charged with riotous assembly. On 4 August AEPs were deployed against rioters on the Crumlin Road in North Belfast, following police arrests of loyalists. Eleven AEP rounds were fired by the police. British Irish rights watch welcomes the investigation by the Police Ombudsman’s OYce into the discharge of the AEPs on 12 July. Media reports indicate that permission to use the rounds was denied eight times before finally being granted.60 BIRW is encouraged by the restraint used by the oYcers, and the
52 According to the Policing Board’s website, one of its key functions is “securing, promoting and supporting professional, human rights and ethical standardswithin the police service”—http://www.nipolicingboard.org.uk 53 House of Commons Hansard Written Ministerial Statements 04.04.05. http://www.parliament.the-stationery-oYce.co.uk/pa/cm200405/cmhansrd/cm050404/wmstext/50404m04.htm. 54 Annual Report and Statement of Accounts, April 2004–March 2005. Police Ombudsman for Northern Ireland. P 14. http://www.policeombudsman.org/publicationsuploads/Annual%20Report%202004-5.pdf 55 Notes for guidance on Police use of Attenuating Energy Projectile. Amended. 16.05.05 www.acpo.police.uk 56 Non-use of plastic bullets praised. Irish News. 26.07.05. 57 A report on the policing of the Ardoyne Parades, 12 July 2004. Northern Ireland Policing Board. 04.11.04. http://www.nipolicingboard.org.uk/word—docs/PDFs/ardoyne—parades.pdf 58 Reports indicate that the bombs were the work of the Continuity IRA (a dissident republican faction). Gerry Adams, Sinn Fein leader, claimed that the police moved into the area in a “reckless manner, they took control away from the stewards”. Alex Attwood, SDLP Policing spokesperson claimed “at least two of the most senior members of the UVF were among supporters who preceded the Orange Lodges pass Ardoyne Shops on Tuesday night . . . Their presence was planned and it was provocative.” Ardoyne faces the fallout. 13.07.05. Daily Ireland. And, Alex Attwood statement, 13.07.05. http://www.sdlp.ie/prattwooduvfpassedshops.shtm 59 Missiles included blast and petrol bombs. PSNI statement. 12.07.05. www.psni.police.uk 60 Police “made eight requests to use plastic bullets”. Ulster Television. 14.07.05. 3358392028 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 116 Joint Committee on Human Rights: Evidence
relatively limited number of rounds used.61 This would imply that due care and consideration is being applied during such situations. We are concerned, however, by media reports that Chief Constable Sir Hugh Orde, head of the PSNI, is to review regulations on the discharge of plastic bullets. It has been indicated that such changes would focus on increased deployment.62
Use of AEPs and Live Fire in September 2005 The outbreak of serious rioting on 10, 11, 12, and 13 September in Belfast, following the re-routing of the Whiterock Orange Order parade, saw the discharge of over 500 AEP rounds, and live fire by both the army and the PSNI.63 We would like to draw attention to the huge number of AEP rounds fired during the riots. On the 10 September alone, security forces fired about 450 rounds, in contrast to relatively limited numbers on the subsequent days.64 While we recognise the security forces faced a serious and dangerous situation, we are concerned that the firing of such large numbers of AEPs may not have been proportionate. Research by British Irish rights watch has found: “. . . almost as many AEPs (519) were fired in four days in 2005 than plastic bullets (569) were fired in the almost four year period from 1 January 1999 to 31 October 2002.”65 We are also concerned that the reporting and scrutiny structures for the discharge of AEPs will be unable to discern accurately whether each use was justified (as per the Police Ombudsman’s mandate) due to the sheer volume of rounds fired. We recognise that the security forces were facing scenes of violence, not seen for nearly a decade, and we commend the PSNI for their calm response to a diYcult security situation. However, the potentially excessive use of AEPs continues to cause BIRW concern. We are also highly concerned by the use of live fire in the riots (by rioters, the PSNI and the army). Two civilians were injured by live fire.66 One of them received serious injuries to the arm from a bullet fired by a soldier.67 Rioters fired 115 shots at police and set oV 146 blast bombs.68 The PSNI are to be commended for firing only eight live rounds in return. However we hope that the Police Ombudsman will nonetheless carry out a full and thorough investigation into the use of live ammunition. We hope that the Joint Committee will encourage the Government to view the use of live ammunition against its citizens with extreme caution.
Children/Young People and AEPs69 Though the investigation into the deployment of AEPs on 12 July is ongoing, it appears that one child and one young person were injured by AEPs.70 The mother of the 15 year old child claims: “He wasn’t even rioting. He wasn’t even facing the police. He was hit on the back of the leg. He hurt his knee as he hit the ground. He was very pale, shaken and confused.”71 It is of serious concern that the force of an AEP is substantial enough to knock a 15-year-old to the ground. Research into the use of plastic bullets between 1970 and 1999 showed that a disproportionate number of children and young people were killed by such projectiles; often these young people were innocent bystanders, and not participating in the violence.72 The problems of aiming plastic bullets at a crowd, the relatively short distance between the police and target, and the presence of children and young people at riots have meant that children and young people are more likely to be injured or killed by this method of
61 For example during the 1996 standoV at Drumcree, 6002 plastic bullets were discharged over a seven day period (average of 857 per day). The Misrule of Law: A report on the policing of events during the summer of 1996 in Northern Ireland. Committee on the Administration of Justice, Belfast, 1996, p 27. 62 Twelfth riots prompt plastic bullet review. Sunday Life. 04.09.05. 63 Leaders must “back forces of law” BBC News. 12.09.05. 64 Whiterock disturbances. Press Release. www.psni.police.uk. 10.09.05. 65 Plastic Bullets. British Irish rights watch. September 2005. The figures in this report were the most accurate available at the time, but in January 2006 BIRW issued an updated report (available at www.birw.org/Plastic%bullets.html) which contained newly acquired figures as follows: 422 AEPs were fired altogether in 2005, 282 by the PSNI and 140 by the army. Thus nearly as many AEPs (422) were fired in four days in 2005 as plastic bullets (431) were fired in the almost two year period from 1 January 1999 to 31 October 2002. 66 Whiterock disturbances and Further disturbances. Press Releases. www.psni.police.uk. 10.09.05 and 12.09.05. 67 Ex-Lord Mayor “will testify in riot case”. Newsletter. 22.09.05. 68 Revealed—the horrific tally from loyalist riots. Belfast Telegraph. 14.09.05. 69 For the purposes of clarity, a child refers to anyone under 18 years of age, and a young person from the age of 18 to 25. The Commissioner for Children and Young People (Northern Ireland) Order 2003, Article 3, uses the following definition: (1) In this Order “child or young person” means (a) a person under the age of 18; and (b) a person aged 18 or over who is leaving care; (c) a person under 21 who is a disabled person within the meaning of the Disability Discrimination Act 1995 (c.50). Correspondence with the Northern Ireland Commissioner for Children and Young People’s oYce. 20.09.05. 70 A 22 year old and a 15 year old were both hit and injured by AEPs. According to, Two arrested on riot charges. Daily Ireland. In Ardoyne faces the fallout and Same old story, Daily Ireland reports two teenagers were injured. Daily Ireland. The Irish News also acknowledges the boy’s injury, in Sinn Fein’s script goes awry as rioting flares. Irish News. 14.07.05. 71 Two arrested on riot charges. Daily Ireland. 72 Nine of the seventeen victims were aged under 18, with the youngest being 10 years old. Only five of the victims were aged over 21. 3358392028 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 117
crowd control.73 BIRW is interested to note that the introduction of AEPs was subject to consultation with the Children’s Commissioner. In the submission made by the Northern Ireland Commissioner for Children and Young People to the UN Secretary General’s Study on Violence against Children, the Commissioner indicated that a full child impact assessment has not been carried out on AEPs.74 We draw the Joint Committee’s attention to reports submitted to the UN Committee on the Rights of the Child by the Children’s Law Centre and Save the Children UK, which argued that the AEP fell below domestic and international child-rights standards as contained in Articles 3 (best interests of the child), Article 6 (right to life) and Article 19 (protection from violence) of the UN Convention on the Rights of the Child.75 British Irish rights watch would like to know if a child impact assessment has been completed; and, if it has, the results of the assessment. The ACPO guidelines relating to children and projectile weapons state: “Whilst the discharge of an AEP represents an option which is potentially a less lethal alternative to conventional firearms every eVort should be made to ensure that children are not placed at risk by the firing of an AEP. This is particularly relevant in public order situations where children may be amongst a crowd and be placed in danger should an AEP miss its intended target.”76 Those rioting on 12 July were predominantly children and young people. Journalist Anne Cadwallader claimed: “there was hardly a rioter from Ardoyne over the age of 16. I stood there for two hours watching them. They were all kids. Recreational rioters, motivated more by the six-pack than the six counties.”77 This is supported by the ages of some of those charged with riotous assembly following the events in the Ardoyne—they included a boy of 12 and another aged 17.78 Gerry Adams, attempting to mediate, also acknowledged the presence of children at the riot.79 Fr Aidan Troy claimed that there were children as young as 11 years old at the riot.80 Indeed, reports of a Belfast riot on 22 August 2005 indicated the presence of six-year-old children.81 British Irish rights watch is very concerned by the use of AEPs against children and young people, and by the fact that relevant AEP guidelines are clearly being ignored. British Irish rights watch is alarmed at media reports that the police may use “public order tactics” against children. The North Belfast Chief Superintendent stated: “Police do not want to be put in the position where we have to use public order tactics against children but in the face of continuing violence we are being left with very little choice.”82 We take this to include AEPs, water cannon, and use of riot police, with or without army support.83 While we are mindful of the need to control violence by young people in Northern Ireland, we believe such tactics are irresponsible, and can result in the infliction of serious injury and even death. Another cause for concern is the manipulation of young people by adults with regard to communal violence. Media reports have indicated that young people are being incited by text message, while they are in school, to participate in the violence.84 This method of recruitment was most eVectively used in the riots 10–13 September 2005. Research carried out by the Policing Board into the relationship between children/ young people and community violence in North Belfast, found clear examples of adults orchestrating and encouraging them to become involved in community violence.85 Children/young people in more deprived
73 Such dangers are not limited to children. There have been as yet unsubstantiated allegations of a woman shot in the stomach by a plastic bullet, after a bullet ricocheted into her while she was standing at her front door, during the riots in September 2005. “If I was a few years younger, I’d be rioting”. Sunday Tribune. 18.09.05. There have also been allegations of individuals loosing eyes from AEPs and a 15 year old who lost his testicles after being hit by an AEP. “If I was a few years younger, I’d be rioting”. Sunday Tribune. 18.09.05. 74 Submission to the United Nations Secretary General’s Study on Violence against Children. Northern Ireland Commissioner for Children and Young People. (NICCY). March 2005. www.niccy.org 75 Cited in Bradford Non-Lethal Weapons Research Project (BNLWRP). Research Report No 7. May 2005. Centre for Conflict Resolution, Dept of Peace Studies. http://www.brad.ac.uk/acad/nlw/research—reports/docs/BNLWRPResearchReportNo7—May05.pdf 76 Notes for guidance on Police use of Attenuating Energy Projectile. Amended. 16.05.05. para 7.8 www.acpo.police.uk 77 Respect and equality the solution to Ardoyne. Daily Ireland. 14.07.05. 78 Boy, 12, charged over Ardoyne rioting. Ulster Television. 17.08.05. 79 “Myself and Fr Aidan Troy were in the area to try and defuse the situation with the young people. We tried to get close to the young people . . .” Same old story. Daily Ireland. The Irish News story, Sinn Fein’s script goes awry as rioting flares also stated “gangs of teens took part in the ritual rioting” and “dozens of teenage girls take to their high heels every two minutes. . .”. Irish News. 14.07.05. 80 Water cannon put end to mediation. Irish News. 14.07.05. 81 Petrol bombs thrown in city clash. BBC News. 23.08.05. Rioters in Belfast on 5/6 September 2005, included a five-year old child (who was held by police before being returned home). Rioter, 5, is caught. Newsletter. 07.09.05. 82 Police “in denial” on street violence. Belfast Telegraph. 23.08.05. 83 In the Patten report, public order equipment was understood as being the following: water cannon, malodorous substance, sticky shocker, pepper spray, CS/CN gas, ring airfoil projectile, sponge grenade, bean bag, foam baton, multiple rubber balls and plastic baton rounds. Of these, the PSNI currently use water cannon, CS gas, and AEPs (plastic baton rounds). Patten Report. p 55. 84 Loyalist rioters recruit children by text message. Ulster Television. 06.09.05. 85“Young people’s attitudes and experiences of policing, violence and community safety in North Belfast”. Northern Ireland Policing Board. June 2005. http://www.nipolicingboard.org.uk/publications/publications.htm 3358392029 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 118 Joint Committee on Human Rights: Evidence
areas of Belfast are being clearly socialised into violence, becoming “recreational rioters”. The Policing Board’s research indicated the very wide experiences of violence and public disorder children/young people in North Belfast had suVered. Particularly pertinent, considering events in September 2005, was their attitude towards the police; 27% of those questioned believed that attacking the police was “ok”, and 22% thought it was “ok” to stone Army vehicles.86 BIRW believe that more research needs to be done into the recruitment and role of children and young people in community violence in Northern Ireland. We believe this is particularly important considering the extent of recent riots, and the extensive use of AEPs, as well as live fire, in controlling this violence. We urge the Joint Committee to remind the Government of its commitments to the human rights of children and young people; and to seek alternative methods of controlling youth violence. We also ask the Joint Committee to encourage the Government to conduct research into the underlying causes of children and young people’s participation in violence.
Use of Water Cannon British Irish rights watch is concerned by the deployment of water cannon to control rioters in Northern Ireland. At the time of our submission to CAT (2004), the PSNI had purchased six new water cannon, and we raised concerns about their possible use. We believe that water cannon can be potentially harmful as a crowd control weapon. In particular, their indiscriminate nature remains problematic—especially in situations of violence where children and young people are present. Water cannon were deployed on 12 July 2005. Fr Aidan Troy, a well known mediator in such situations, described his own experiences: “The force of it when it hits youin the small of the back is like someone hitting youwith a club or a stick . . . if the water cannon was able to lift me up, and I’m a little overweight, what could it do to them [referring to small children].”87 British Irish rights watch ask the Joint Committee to urge the Government to be cautious in the deployment of water cannon and to develop guidance to ensure they are used as safely as possible.
Use of CS Incapacitant Spray CS spray was introduced in 2003, and is carried by on-duty oYcers as part of their regular patrol equipment. By mid November 2004, it had been deployed on 39 occasions and discharged 23 times. BIRW is encouraged to see that each of these 23 incidents has been referred to the Police Ombudsman for investigation. We feel that the presence of an oversight structure goes some way to ensuring that due care and attention is given before deployment; which in turn should limit the spray’s use. We are encouraged by the Ombudsman’s recommendation to the PSNI that CS spray should not be used as a dispersal weapon in street disorder.88 However, we are concerned that automatic referral has now ceased following a change of policy by the Ombudsman, and cases only come under scrutiny if a complaint is made.89 British Irish rights watch ask the Joint Committee to encourage the Government to ensure that all cases of CS spray use are automatically referred to the Police Ombudsman. CS, deployed either as a spray or a projectile, is potentially hazardous, both to the public and to police oYcers. It is an irritant that can damage the eyes and cause severe problems for people with respiratory disorders such as asthma, skin conditions such as dermatitis, and other disorders such as hypertension, all of which are common conditions among the general population and not necessarily obvious to police oYcers. In particular, those wearing soft contact lenses will suVer severe pain where the CS is able to penetrate and become trapped between the eyeball and the lens.90 The police guidelines on the use of CS spray caution against its use on people who suVer from mental illness, have consumed drugs and/or alcohol, or who may be vulnerable through age. BIRW believe that judgements about mental illness, drugs and alcohol consumption are diYcult for oYcers to make in often tense situations. Research into the eVects—particularly the long-term eVects—of CS is lacking. Police oYcers in particular run a high risk of contamination when CS is used, whether by themselves or by fellow oYcers, and also run the additional risk of frequent exposure. The diYculty of de-contaminating both the skin and clothing after exposure is a further concern. While CS spray is not fully sanctioned for use at public order events, guidelines do allow its use by oYcers who may be “isolated and otherwise vulnerable”.91 Two separate incidents in September 2005 have seen the use of CS spray as a method of crowd control. It has been alleged that the first incident, in Cushendall, saw a 14 year-old boy sprayed directly in the face.92 CS spray was used in the
86 Ibid. p 39. 87 Water cannon put end to mediation. Irish News. 14.07.05. 88 Annual Report and Statement of Accounts, April 2004 to March 2005. OYce of the Police Ombudsman. p 33 http://www.policeombudsman.org/publicationsuploads/Annual%20Report%202004-5.pdf 89 The policy of automatic referral of CS spray incidents to the Police Ombudsman finished at the end of 2004. Ibid. p 25. 90 CS Incapacitants. Guidelines for Police Medical Professionals. Appendix D. Police Service of Northern Ireland. CS Incapacitant Spray. 19.05.04, updated 31.05.05. www.psni.police.uk. p 17. 91 Ibid. p5. 92 Ombudsman is asked to probe riot. BBC News. 04.09.05. 3358392029 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 119
second incident, in Andersonstown, Belfast, against a gang of men. British Irish rights watch wholly condemns the use of CS spray against children. While we are encouraged that the Police Ombudsman may be invited to investigate the Cushendall incident, we remain deeply concerned at the alleged method of its deployment, and the youth of the alleged victim. We are also concerned by allegations that in Andersonstown, CS spray was used on individuals who had already been restrained by handcuVs.93 The use of CS, whether in a spray or a projectile, violates the prohibition on torture and cruel, inhuman or degrading treatment because it is designed to modify behaviour through the infliction of pain and intense discomfort. We encourage the Joint Committee to ask for an outright ban on the deployment of CS spray in public order situations.
Use of Tasers British Irish rights watch has strong reservations about police employment of tasers. The taser is designed to administer a 50,000 volt charge to the suspect, via two darts. The Chief Constable of Greater Manchester Police Force said, after being shot by one: “I couldn’t move, it hurt like hell. . . . I’ve never experienced anything like that. Youjustseem to freeze.” 94 BIRW considers that tasers fall within the boundaries of torture; the infliction of pain and suVering on individuals to modify their behaviour. The operational guidance on the use of tasers during the trials that relate to what is euphemistically described as “aftercare” are particularly worrying. They suggest that taser barbs may become attached to sensitive areas such as the face, eyes, neck or genitals, in which case they must be removed by qualified medical personnel, almost certainly at a hospital.95 Barbs removed from the skin have to be regarded as biohazards.96 A person hit by a taser who has a cardiac pacemaker fitted must go straight to hospital, and consideration should be given to sending others who have a medical condition, which might increase the risk of using a taser, to hospital.97 The manufacturers of tasers recommend against their use on people with heart problems or pregnant women, both of which are conditions which may not be evident to a police oYcer. They also say they should not be fired at children, but as the history of plastic bullets shows, children all too often get in the way. An Amnesty International report examining taser use in the United States, alleged that over 70 people have died after being struck by a taser.98 BIRW is concerned that the lack of a full inquiry into the deployment and usage of tasers may see similar deaths in the UK. We are not satisfied by Independent Police Complaints Commission assurances that it is fully satisfied with the year-long trial which occurred prior to the introduction of tasers, and the fact that “nobody suVered any serious injuries”.99 We believe it is only a matter of time before serious injury, or even death, is caused by a taser. Tasers are only currently available to firearms oYcers in the UK and not to “frontline oYcers”; but the 7 July bomb attacks in London have indicated that this may potentially change.100 It is of particular concern that a taser was deployed during the arrest of a suspected suicide bombed in Birmingham on 28 July 2005.101 The key concern is the possible presence of explosives, and the risk that the shock emitted by a taser might detonate them.102 In high density population areas, the detonation of what might be a significant amount of explosives has the potential to cause numerous deaths. A similar arrest occurred at Manchester airport, where the use of a taser, and the possibility of explosives being present, combined with large amounts of fuel, could have had catastrophic eVects.103 Tasers can also cause conflagration, especially if they come into contact with petrol, alcohol, or CS spray.104 We understand that the Chief Constable of the PSNI has made an operational decision not to deploy tasers in Northern Ireland.105 We believe this to be a wise decision, because the potential eVects of tasers fired where rioters are throwing petrol bombs could be lethal. However, tasers are still available to the PSNI should their policy change, which is why we have included the above comments in this submission. British Irish rights watch urges the Joint Committee to call for a ban on the use of tasers by UK police forces.
93 “The police forced their way into the public house and pulled people out, attacking them with batons, putting them on the ground, handcuYng them and spraying CS spray at them. Police “heavy-handed” as loyalist parade attacked claims local SF councillor. Derry Journal. 30.08.05. 94 Chief Constable hit by Taser gun. BBC News. 05.07.05. 95 Operational Guidance on the use of Tasers. August 2004. Association of Chief Police OYcers. para 11.5. 96 Ibid para 11.4. 97 Ibid para 11.6. 98 United States of America. Excessive and lethal force? Amnesty International’s concerns about deaths and ill-treatment involving police use of tasers. 30.11.04. http://web.amnesty.org/library/index/engamr511392004 99 IPCC statement. 30.11.04 http://www.ipcc.gov.uk/news/pr301104—tasers. 100 Police play down taser blast risk. BBC News. 29.07.05. 101 Ibid. 102 Ibid. 103 Man held in airport security alert. Ulster Television. 23.09.05. 104 Operational Guidance on the use of Tasers. August 2004. Association of Chief Police OYcers. para 7.4. 105 Response to Inquiry under the Freedom of Information Action, from the PSNI. 3358392029 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 120 Joint Committee on Human Rights: Evidence
RUC and the PSNI
CAT Conclusions and Recommendations “3(a) the dissolution of the RUC” Unfortunately the UN Committee against Torture misunderstood the situation regarding the establishment of the PSNI. The RUC was not dissolved, but was re-named, and a programme of reform was introduced following recommendations by the Patten Commission. British Irish rights watch has welcomed this programme of reform. However, BIRW would like to draw the Joint Committee’s attention to three outstanding issues regarding the PSNI. — Human rights training — Recruitment — Ongoing protection of informants
Human Rights Training The report of the Independent Commission on Policing for Northern Ireland (Patten Commission) recommended a human-rights-based approach to policing, incorporating a new Code of Ethics and comprehensive human rights training for all police oYcers.106 A training programme for new recruits and serving oYcers has been drawn up and implemented, and the Northern Ireland Human Rights Commission has observed and reported on training sessions. Having examined the reports of the NIHRC and those published by the Oversight Commissioner and the Northern Ireland Policing Board, British Irish rights watch is concerned that training in human rights principles and their practical application has not been suYcient to ensure that respect for human rights occupies the central and ongoing place in policing envisaged by the Patten Commission. Firstly, while the Police Service of Northern Ireland has achieved a great deal in educating its staV on human rights issues, there remains a concern that such work is reactive and not proactive. The absence of an action plan to further implement human rights training, and indeed the absence of the development of a wider philosophy of human-rights-oriented policing, are a disappointment.107 Secondly where human rights training has been introduced, for example the Course for All, there is concern from both the Northern Ireland Human Rights Commission and the Policing Board, that the aims of such training have not been fully met.108 There is also concern about the lack of refresher courses and the absence of any plans to re-run the course in either its original or updated format.109 The result is a police force which appears to have a relatively limited knowledge of human rights. For example, research by the Policing Board survey found the following: 52% of police oYcers believed they could use lethal force where such force is necessary and appropriate, rather than where it is absolutely necessary to do so.110 This is an issue of serious concern for BIRW. Similarly, while 83% of oYcers knew that informants/covert human intelligence sources can be used only if they do not incite criminal oVences, 11% still believed they could be used even where they incited crime, as long as they furthered the investigation.111 Considering the extensive history of collusion in Northern Ireland, BIRW views this research with deep anxiety. British Irish rights watch urges the Joint Committee to encourage the Government to improve the quality and quantity of human rights training implemented within the PSNI. In particular, to develop and implement refresher courses on human rights; and to review and, where necessary, update course material so that it adequately reflects changes in legislation.
Recruitment Recruitment plays a key role in the ability of the PSNI to eVectively and fairly police all of Northern Ireland’s communities. The Patten report recommended that civilian members of the police force should be “. . . a balanced and representative civilian workforce”.112 The Oversight Commissioner notes that the PSNI has not prepared a formal strategy to address this representation—there have been only minimal increases in Catholic civilian staV since 1999.113
106 Patten Report at paras 4.8 and 4.9. A Code of Ethics was launched in 2003 and became a disciplinary code. See Code of Ethics for the Police Service of Northern Ireland, available at http://www.psni.police.uk/nipb—ethics-nonotes-1.pdf 107 The OYce of the Oversight Commissioner also notes the problems of the absence of a plan for future actions with a time line. Overseeing the Proposed Revisions for the Policing Services of Northern Ireland—Report 13. Published 09.06.05. www.oversightcommissioner.org/reports/pdf/june2005.pdf 108 Human Rights Annual Report 2005. The Northern Ireland Policing Board. p 3 http://www.nipolicingboard.org.uk/word—docs/PDFs/HR—main.pdf 109 Ibid p3. 110 Ibid p 146. 111 Ibid p 152. 112 Overseeing the Proposed Revisions for the Policing Services of Northern Ireland—Report 13. Published 09.06.05. p 109. www.oversightcommissioner.org/reports/pdf/june2005.pdf 113 Catholic civilian support staV has increased by only 2.2% from 12.3% in 1999 to 14.5% as at March 2005. Overseeing the Proposed Revisions for the Policing Services of Northern Ireland—Report 13. Published 09.06.05. p 109 www.oversightcommissioner.org/reports/pdf/june2005.pdf 3358392030 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 121
British Irish rights watch call on the Joint Committee, to encourage the Government to create and promote a balanced civilian workforce within the Police Service of Northern Ireland. British Irish rights watch supported the renewal of the 50:50 recruitment policy in March 2004 for regular police oYcers. We believe that the scheme has increased Catholic participation in policing; and we are encouraged by the fact that 17.8% of Police OYcers are now Catholic.114 While we believe that this figure is still too low, we do recognise that responsibility for encouraging Catholics to apply to the police force lies not only with the PSNI but also with the community. British Irish rights watch call on the Joint Committee to recommend the PSNI redouble its eVorts to encourage Catholic participation in the Police Service.
Ongoing Protection of Informants Despite the reforms by the PSNI regarding the recruitment and handling of informants, BIRW remains extremely concerned at the PSNI’s apparent inability to bring to book serious paramilitary criminals. We believe that one of the reasons for this failure is that the culture of placing greater value on intelligence than on saving lives or solving crimes is still endemic within the PSNI. It is clear that urgent and radical reform is required in this area. We ask the Joint Committee to call on the Government to establish a wholly independent review of the PSNI’s arrangements for, and relationships with, informants.
Human Rights Act
CAT Conclusions and Recommendations “3(b) The entry into force of 2000 of the Human Rights Act” Derogating from Human Rights Conventions BIRW is highly disturbed at Prime Minister Blair’s declared intention to “amend . . . the Human Rights Act in respect of the interpretation of the European Convention on Human Rights”, so as to enable the deportation of foreign nationals perceived to be a threat to national security.115 The Government’s previous attempts to deport foreigners on this ground have thus far been prevented by the judiciary, and under Article 3 of ECHR which prevents repatriation of individuals to countries where they might face torture or ill treatment. Mr Blair has sought agreements from countries such as Jordan that any individuals who are returned, will not be subject to inhumane treatment. BIRW is anxious about these agreements, and does not consider them suitable protection for such individuals. The UK has a duty under the Convention against Torture and under international law to prevent torture; and in this case to protect non-British nationals from becoming victims of torture. Jordan, and the other states on Mr Blair’s list (including Algeria and Lebanon) have a consistently low standard of human rights protection, and have attracted a high number of allegations of torture. We believe that any repatriation will result in torture and inhumane treatment—a direct violation of the UK’s international obligations. We ask the Committee to press the Government not to derogate from Article 3 of the ECHR. BIRW is concerned that any derogation from human rights instruments will set a standard for human rights protection in the UK. In his 5 August briefing, Mr Blair clearly laid out his belief that national security took precedence over human rights. This is of great concern to BIRW. In Northern Ireland, human rights were subsumed by national security issues and this resulted in the deaths of many innocent people, the victimisation of individuals and communities, wrongful imprisonment and state collusion. We ask the Committee to encourage the Government to remain committed to international human rights standards. Detention BIRW is concerned about attempts, by the Home Secretary, to extend the time the police are able to detain an individual without charge from two weeks to three months.116 This legislative change, if implemented, would directly contravene Article 5 of the European Convention on Human Rights. The UK has already experienced arbitrary detention in the form of internment in Northern Ireland during the 1970s. It was shown to be a violation of human rights, and an ineVective method of preventing terrorism. BIRW is concerned by the attitude of the Lord Chancellor to this proposed extension. He claims that three months detention is a “sensible period to detain suspects while sensible investigation is going on”.117 We are also concerned that any attempt to enact this legislation will ensure an automatic derogation from Article 5 of
114 Northern Ireland Policing Board, Annual Review 2004–2005. p6. www.nipolicingboard.org.uk. 115 Prime Minister’s press conference 05.08.05 http://www.number10.gov.uk/output/Page8041.asp 116 Ibid. 117 Secret terror courts considered. BBC News. 09.08.05. 3358392030 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 122 Joint Committee on Human Rights: Evidence
the European Convention on Human Rights. This clearly states: “Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other oYcer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”118 BIRW encourages the Joint Committee to oppose prolonged detention without trial.
Police Ombudsman
CAT Conclusions and Recommendations “3(e) OYce of the Police Ombudsman”
Police Ombudsman British Irish rights watch has been encouraged by the establishment of the oYce of the Police Ombudsman, who has carried out investigations into thousands of complaints of police abuse. We are pleased to note that in her most recent annual report, the Ombudsman commented on the downward trend in the number of complaints since 2000.119 We hope that this is a positive sign of the improvement of the PSNI’s relationships with Northern Ireland’s communities. The experiences of those who have had dealings with the Police Ombudsman have varied widely. On occasions both complainants and NGOs working with them have found that their cases were not handled well; they were not kept fully informed about their cases, and that important documents were withheld from them. Similarly, there have been occasions where lawyers have complained that they have been sidelined or excluded from meetings between the Ombudsman’s oYce and their clients. British Irish rights watch would like to see more transparency in the operation of the Police Ombudsman’s oYce and its handling of complaints. BIRW is concerned that the remit of the Police Ombudsman’s oYce, prevents her from investigating the behaviour of oYcers who have retired from the force. As some of the Ombudsman’s cases stem from the 1980s and early 1990s, this exclusion has, on occasion, hindered the Police Ombudsman’s investigation and potentially undermined its standing within the community. We also continue to be disappointed that the Police Ombudsman’s powers do not enable her to investigate cases of alleged misconduct by the British Army, despite the fact that the Army acts in a support role for the police, who retain primacy over security policy. The fact that the Ministry of Defence conducts its own investigations into misconduct is not reassuring, as we believe that it is not suYciently impartial, nor are the results of its investigations made public. Very serious oVences may be referred by the MoD to the PSNI, or the PSNI may investigate independently. The Independent Assessor of Military Complaints Procedures in Northern Ireland, an oYce that was created in 1991 to act as a “watchdog” for the procedures used by the Army to deal with complaints, does not examine individual complaints about the actions of individual soldiers. In addition, the Independent Assessor does not have a dedicated staV of independent investigators, nor anything like the resources of the Police Ombudsman. We are also concerned that the Police Ombudsman is unable to investigate the firing of plastic bullets/ AEPs by the army, even in situations when they are fired at the same time, and at the same incident, as the PSNI are using such weaponry. British Irish rights watch would like the Joint Committee to explore what eVorts are being made to ensure greater accountability for the actions of the armed forces in Northern Ireland. BIRW ask the Joint Committee to recommend that the Police Ombudsman’s powers in this sphere are extended.
Northern Ireland Human Rights Commission
CAT Conclusions and Recommendations “3(e) the establishment of the Northern Ireland Human Rights Commission” British Irish rights watch welcomed the establishment of the Northern Ireland Human Rights Commission. However, we would like to raise concerns about several elements of its structure and operations, which we believe are inhibiting its eVectiveness. — Powers — Appointment of Commissioners — Bill of Rights
118 European Convention on Human Rights. http://www.hri.org/docs/ECHR50.html 119 Drop in complaints against police. Press release. 21.07.05. OYce of the Police Ombudsman http://www.policeombudsman.org/press.cfm?Press—ID%104&action%detail&year%2005 3358392030 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 123
Powers The Northern Ireland Human Rights Commission (NIHRC) is limited in its powers, and as such is not compliant with the Paris Principles. More specifically, the inability of the Commission to compel the attendance of witnesses or production of documents has undermined its work. In 2001 the Commission submitted a review of its powers to the Government. The Commission is still awaiting an adequate response to the recommendations contained in this review. The Government did make a statement in December 2004, which stated its agreement, in principle, to an expansion of the Commission’s powers—namely the right of access to places of detention and the power to compel evidence and witnesses in conducting its investigations.120 However, it does not appear that a full statement on these issues has yet been produced as promised.121 The UN Committee against Torture recommended the appointment of the NIHRC as one of the monitoring bodies under the Optional Protocol to the Convention on Torture, and which establishes a system of regular visits by independent national and international bodies to places of detention in signatory states.122 The UK ratified the Optional Protocol on 10 December 2003. While we were encouraged by the Northern Ireland OYce (NIO) December statement on this issue, we were disappointed to see the Commission had to resort to court action to gain access to a juvenile justice centre—Rathgael. Access has now been granted, and the case was settled without recourse to full judicial review. While BIRW does not take a position on whether the NIHRC should have full and continued access to places of detention in Northern Ireland, we do feel that access “as and when required” would be of benefit to the Commission and its work. British Irish rights watch call on the Joint Committee to encourage the Government to widen the powers of the Northern Ireland Human Rights Commission, in line with the Paris Principles. Appointment of Commissioners BIRW would like to raise concern about the problems in the recruitment and retention of members of the Commission. Firstly the time taken by the NIO to source suitable candidates for the post of Chief Commissioner seems unduly long. While the NIO cannot be held responsible for any dearth of candidates, we believe that the recruitment process commenced too late, resulting in several months without a Chief Commissioner. Secondly, the resignation of Commission members has ensured that the Commission has been operating at limited capacity.123 While BIRW welcomes the new appointments to the Commission, as announced in June, we have reservations about the human rights credentials of some appointees.124 The original membership included a high level of human rights expertise; that has now been somewhat watered down. We are concerned that political balance has become of greater consideration than human rights knowledge and experience. The new appointees may not have a suYcient collective understanding of human rights, nor, a shared perspective on human rights norms. We fear this will eVectively undermine the Commission’s ability to operate in the manner in which it was intended. This Joint Committee made recommendations, in its 2003 report on the Workings of NIHRC, to similar eVect.125 It has become clear that these recommendations have been ignored. We have always argued that the Commission should be appointed independently, rather than by the Secretary of State. Finally, we would point out that governments come and governments go, and even if it were not for the concerns outlined above, we would prefer to see the independence of the Commission enshrined in legislation, to safeguard it from the predations of a less enlightened regime. BIRW encourages the Joint Committee to urge the Government to reform the appointment process, taking into account previous recommendations from this Committee. Bill of Rights The Bill of Rights serves as a good example of the diYculties faced by the Commission, whose eVectiveness has been hindered by personnel and political problems. We hope that the new Commission is able to revitalise the process of constructing a Bill of Rights for Northern Ireland, and to encourage greater community “buy-in” for the project as a whole.
120 Competition for Chief Commissioner of the Northern Ireland Human Rights Commission. Northern Ireland OYce press statement. 17.12.05. http://www.nio.gov.uk/media-detail.htm?newsID%10675 121 In his December statement, the Secretary of State for Northern Ireland indicated that a full statement on the matter would be issued in January 2005. There is no evidence from NIO or NIHRC that such a statement has been forthcoming, “A full statement of the Government’s conclusions on each of the NIHRC’s recommendations will be published in the New Year.” Competition for Chief Commissioner of the Northern Ireland Human Rights Commission. Northern Ireland OYce press statement. 17.12.05. http://www.nio.gov.uk/media-detail.htm?newsID%10675 122 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. 33rd Session, 15–26 November 2004. Conclusions and recommendations of the Committee against Torture. United Kingdom of Great Britain and Northern Ireland, Crown Dependencies and Overseas Territories. 123 Since 2002, the number of commissioners has declined from 13 to six. Human rights boss raps lack of support. Belfast Telegraph. 23.02.05. 124 New appointments to Northern Ireland Human Rights Commission. Northern Ireland OYce Press Release. 16.06.05. http:// www.nio.gov.uk/media-detail.htm?newsID%11678 125 Work of the Northern Ireland Human Rights Commission. Joint Committee for Human Rights. 15.07.03. p 17. http://www.publications.parliament.uk/pa/jt200203/jtselect/jtrights/132/13202.htm 3358392030 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 124 Joint Committee on Human Rights: Evidence
Depressingly, the government has frequently failed to defend the Commission suYciently robustly. Instead, it has left the Commission to answer dozens of patently ill-intentioned questions set down in Parliament and in the Northern Ireland Assembly, at disproportionate cost in terms of its already scarce resources. It has also withheld the Commission of the powers and the resources it needs to operate eVectively. The government has consistently failed to defend the Commission from often quite scurrilous attacks, most recently directed against the new Chief Commissioner, made in Parliament. It is vital that the government makes it clear that it supports the Bill of Rights and the vital work of the Commission in helping to bring it into being. BIRW ask the Joint Committee to encourage the Government to increase its moral and political support for the NIHRC.
Use of Evidence Obtained by Torture
CAT Conclusions and Recommendations “C Subjects of concern 4(a) remaining inconsistencies between the requirements of the Convention and the provisions of the State party’s domestic law which, even after the passage of the Human Rights Act, have left continuing gaps; notably: (i) article 15 of the Convention prohibits the use of evidence gained by torture wherever and by whomever obtained; notwithstanding the State party’s assurance set out in paragraph (g), supra, the State party’s law has been interpreted to exclude the use of evidence extracted by torture only where the State party’s oYcials were complicit; and (ii) article 2 of the Convention provides that no exceptional circumstances whatsoever may be invoked as a justification for torture; the text of Section 134(4) of the Criminal Justice Act however provides for a defence of “lawful authority, justification or excuse” to a charge of oYcial intentional infliction of severe pain or suVering, a defence which is not restricted by the Human Rights Act for conduct outside the State party, where the Human Rights Act does not apply; moreover, the text of section 134(5) of the Criminal Justice Act provides for a defence for conduct that is permitted under foreign law, even if unlawful under the State party’s law;” British Irish rights watch draws the Committee’s attention to the Government’s attempts to put evidence gained under torture to UK courts, tribunals and similar bodies. The A & Others v Secretary of State, Home Department which is to be heard before the House of Lords in October. BIRW, along with 13 other NGOs, is a third part intervener in this case. Ten men held indefinitely under the Anti-terrorism, Crime and Security Act (2001) submitted an appeal against the 2003 judgments of the Special Immigration Appeals Commission (SIAC), including SIAC’s ruling on the admissibility of evidence obtained by torture. This appeal was rejected. The Court of Appeal, by a two-to-one ruling, decided that evidence gained through torture could be used so long as it had not been procured directly by UK state agents or UK agents had not connived in its procurement. BIRW was encouraged by the dissenting position taken by Lord Justice Neuberger, who indicated that evidence gained through torture would contravene the right to a fair trial, as the individual whose evidence was utilised may not be present to be cross-examined.126 However, we were alarmed by the then-Home Secretary’s attitude towards this ruling. David Blunkett stated “we unreservedly condemn the use of torture and have worked hard with our international partners to eradicate this practice. However, it would be irresponsible not to take appropriate account of any information which could help protect national security and public safety.”127 We do not believe that the submission of evidence gained through torture is compatible with an unreserved condemnation from the Government. As we have seen in Northern Ireland, the use of national security as a justification for the curtailment of human rights is both illegitimate and counter-productive. We believe that the UK Government’s position has the potential to lead to the “contracting out” of torture. Allegations made in the national media reinforce this fear. Benyam Mohammed, an alleged Al- Qaeda terrorist, claims he was tortured in prisons in Pakistan, Morocco and Afghanistan, with the full knowledge of UK and US security oYcials.128 This goes against the very nature of the prohibition on torture which has a character of obligatio erga omnes—where each state has an obligation to humanity to ensure compliance with the prohibition. The prohibition is also absolute—where evidence elicited by torture has to be excluded from use in proceedings. This is cemented for the UK, in Article 6 of ECHR. The refusal to accept evidence obtained by torture is integral to the right to a fair trial, and to the prohibition of torture.
126 In the Supreme Court of Judicature Court of Appeal (Civil Division) on appeal from the Special Immigration Appeals Commission. Before: Lord Justice Pill, Lord Justice Laws and Lord Justice Neuberger. Between A, B, C, D, E, F, G, H, Mahmoud Abu Rideh, Jamal Ajouaou and Secretary of State for the Home Department. 11.08.04. para 415. 127 Quoted in Court rules that evidence gathered using torture can be used. www.statewatch.org/news/2004/aug/06uk-torture.htm 128 Suspect’s tale of travel and torture. The Guardian. 02.08.05. 3358392030 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 125
The use of ill-treatment in Northern Ireland and England from the 1970s onwards contributed to the wrongful imprisonment of innocent individuals. Cases such as the “Guildford Four” and the “Birmingham Six” clearly illustrate the problems of accepting tainted evidence in legal courts. British Irish rights watch urges the Joint Committee not to condone the use of evidence obtained by torture in UK courts. We believe the UK government has a moral and legal obligation to uphold its commitment to the prohibition of torture and ill-treatment, in the domestic and international courts.
Repeal of Emergency Laws
CAT Conclusions and Recommendations “4(c) the incomplete factual and legal grounds advanced to the Committee justifying the derogations from the State party’s international human rights obligations . . . with respect to Northern Ireland, the absence of precise information on the necessity for the continued emergency provisions for that jurisdiction contained in the Terrorism Act 2000;”
Repeal of Emergency Laws BIRW welcomes the Secretary of State’s decision to repeal counter-terrorist legislation particular to Northern Ireland.129 We look forward to the enactment of the Normalisation Programme. We believe that the continuation of the emergency provisions contained in the Terrorism Act 2000 has been unwarranted, and never accepted the premise that Northern Ireland needs emergency legislation. Part VII of the Act, which deals with Northern Ireland, has been renewed annually. We do not consider the provisions contained in Part VII necessary.130 We consider this particularly pertinent as the Government seeks to introduce new restrictive legislation, which could lead to the declaration of a state of emergency in the UK. With reference to serious civil disturbances witnessed in Northern Ireland in September 2005, we would like to sound a note of caution. We sincerely hope that this violence is not used by the Government as a justification to delay the full implementation of the Normalisation Programme. BIRW ask the Joint Committee to encourage the Government to adhere to its timetable for the Normalisation Programme.
Prisons
CAT Conclusions and Recommendations “4(g) reports of unsatisfactory conditions in the State party’s detention facilities including substantial numbers of deaths in custody, inter-prisoner violence, overcrowding and continued use of “slopping out” sanitation facilities, as well as reports of unacceptable conditions for female detainees in the Hydebank Wood prison, including a lack of gender-sensitive facilities, policies, guarding and medical aid, with male guards alleged to constitute 80% of guarding staV and incidents of inappropriate threats and incidents aVecting female detainees. D. Recommendations 5(1) The State party should develop an urgent action plan, including appropriate resort to criminal sanctions, to address the subjects of concern raised by the Committee in paragraph 4(g) as well as take appropriate gender-sensitive measures.” British Irish rights watch welcomes the acknowledgement by the UN Committee against Torture of the unsatisfactory conditions in the UK’s detention facilities. BIRW was also encouraged to see that the Committee recommended that the UK should develop an urgent action plan to address this issue. Nonetheless BIRW remains greatly concerned about the state of Northern Ireland’s prison regime. Despite a number of highly critical reports issued by UK prison inspectors, and the Northern Ireland Human Rights Commission, the prison service has implemented relatively limited changes to its regime, and conditions in prisons remain poor. The issues of concern to British Irish rights watch are: — General prison conditions in Northern Ireland — Separated prisoners — Women prisoners and prison conditions at Ash House (Hydebank Wood Young OVenders Centre)
129 Secretary of State publishes normalisation plans. NIO press release. 01.08.05. www.nio.gov.uk 130 The Human Rights Committee, in its 2001 examination of the UK, expressed its concern that “despite improvements in the security situation in Northern Ireland, some elements of criminal procedure continue to diVer between Northern Ireland and the remainder of the State party’s jurisdiction.” See Concluding Observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 6/12/2001, CCPR/CO/73/UK at para 18. 3358392031 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 126 Joint Committee on Human Rights: Evidence
— Prison staV — Human rights training — Prisoner Ombudsman and complaints procedure
General Prison Conditions While British Irish rights watch believe that the prison estate in Northern Ireland is out-dated and inadequate; we welcome the announcement made by Robin Masefield, head of the Northern Ireland Prison Service, that the Magilligan Prison will be replaced by a new jail.131 We look forward to learning in full the results of the Government’s strategic review of the prison estate. BIRW has previously expressed concern that rather than the current two large, concentrated prisons for adults at Maghaberry and Magilligan, smaller, more modern facilities with a wider variety of regimes, including an open prison and a women’s jail, would allow a much more flexible approach to the requirement to segregate some prisoners from others. In our submission to the UN Committee against Torture (2004), we raised concern over the strip searching of prisoners, which we believe is a humiliating and degrading practice that can easily be abused. For example, strip searching before and after court hearings, legal consultations and family visits—even in cases where there has been no physical contact with any other person—can act as a disincentive to prisoners’ attending hearings such as judicial review applications made on their behalf, or asking for legal or family visits. In our view, strip searching is unnecessary given modern technology, and subjects both male and female prisoners to humiliating and degrading treatment. The issues of excessive strip searching and the restricted movement of inmates in Maghaberry prison were raised in a parliamentary question to the Secretary of State for Northern Ireland in 2004. In response, the Secretary stated that such searching was essential in order to protect the safety of prisoners and staV, and assured that “the level of searching that takes place in Maghaberry is the same across the rest of the UK for similar category prisoners.”132 However, in the House of Lords, the Home OYce Minister of State for the Criminal Justice System and Law Reform later stated that the Northern Ireland Prison Service does not have a centralised database of search statistics, which means that it is impossible to compare the incidence of strip searches in Northern Ireland with other jurisdictions.133 While we continue to call for an end to strip searching, British Irish rights watch believe that, if the current practice of strip searching be continued, such statistics should be compiled and be subject to public scrutiny. We request the Joint Committee to ask the Government to abolish strip searching or, failing that, to reduce the number of searches. We encourage the Government to compile adequate guidelines as to when such searches are justified, and keep statistics subject to public scrutiny of its use. BIRW would like to raise concern about the proposed introduction of PAVA spray (a kind of pepper spray) by the Northern Ireland Prison Service (NIPS).134 The use of such sprays can be potentially hazardous to both the prison oYcer and the prisoner. We are particularly concerned by PAVA spray usage where a prisoner is already restrained, and where any administration would cause severe pain and suVering; or where the space in which it is used is relatively confined (a cell for instance), which would disproportionately concentrate the eVects of the spray.135 We urge the Joint Committee to oppose the introduction of PAVA spray into Northern Ireland’s prisons, in line with Article 16 of the Convention against Torture.
Separated Prisoners British Irish rights watch continues to take a long-term interest in the detention conditions of paramilitary prisoners in Northern Ireland—both in terms of their safety and their right to be treated in conformity with domestic and international laws and rules relating to the human rights of prisoners. We are concerned about the disparity in treatment between separated prisoners and the rest of the prison population. The separated regime, introduced into Maghaberry prison in 2003, followed recommendations from the Steele Review, which concluded that a degree of separation was required to protect members of opposing paramilitary factions from one another, as well as to protect ordinary prisoners. The NIPS introduced a
131 Magilligan Prison to be replaced. BBC News. 14.09.05. 132 House of Commons Hansard Written Answers for 8 June 2004 (pt 19). According to the Prisons and Young OVenders Centre Rules 1995, a prisoner may be searched whenever his cell is searched, whenever he may have come into contact with people from outside the prison, or at any time when the governor considers it necessary for the safety and security of the prison. 133 Lords Hansard text. 24.06.04 Column WA145. http://www.parliament.the-stationery-oYce.co.uk/pa/ld199900/ldhansrd/pdvn/home.htm 134 Minutes of the Prisons Board Meeting, April 2005. Item 5. http://216.239.59.104/search?q%cache:YnSXHrNs2IUJ:www.niprisonservice.gov.uk/pdfs/PubUploads/April 2005.pdf!hamill!report&hl%en 135 Police policy on their use of CS spray clearly states that it should not be used in an enclosed area (eg car) nor on a subject who is restrained or handcuVed. CS Incapacitant Spray. Police Service of Northern Ireland. 19.05.04, updated 31.05.05. http:// www.psni.police.uk/cs-spray.pdf 3358392031 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 127
Compact for Separated Prisoners which details the separated regime, and must be signed by any prisoner who opts to become a separated prisoner. BIRW has concerns, firstly, that the reality of the separated regime is far more restrictive than the regime as detailed in the Compact. Secondly, that these restrictions violate the prisoner’s rights. This is most apparent in the restrictions applied to prisoner’s movements, which directly impact on a prisoner’s ability to associate and his opportunities for education. This has been further impacted by the application of the Prison and Young OVenders Centre (Amendment) Rules (Northern Ireland) (2004 Rules) which has ensured that certain social and educational provisions are no longer applicable to separated prisoners. While most prisoners “will be able to use their time constructively while in prison and will be encouraged to do so”, for instance, to engage in education, the NIPS Annual Report 2004–05 indicates that for separated prisoners “constructive time” is defined simply as time out of their cells.136 In contrast non-separated prisoners are able to partake of “all pursuits that play a part in the enhancement of an individual’s skills, knowledge, attitudes and behaviour or contribute to the reduction in the likelihood of re-oVending”.137 BIRW feels that this diVerentiation will have a direct bearing on the ability of separated prisoners to safely and adequately reintegrate into the community on their release from prison. While BIRW is mindful of the safety of prison oYcers and prisoners, we are concerned that the operation of the 2004 Rules has a directly detrimental eVect on the rights and treatment of separated prisoners. Following recent correspondence with the NIPS, BIRW is encouraged that some small changes have been made, for instance, by the introduction of a live religious service every Sunday, and the instillation of a new library facility.138 We hope that such improvements will continue. The introduction of the 2004 Rules has exposed separated prisoners to being subjected to a loss of remission for a disciplinary oVence. This is a direct contradiction of the Government’s explanation for revoking the Governor’s power to award loss of remission as a punishment for non-separated prisoners, on the basis that “that power is incompatible with Article 6 of the European Convention on Human Rights”. This amounts to another clear diVerence in the treatment of separated and non-separated prisoners in Northern Ireland. This discrimination is prohibited by Article 14 (ECHR); such separation is not a status conferred upon prisoners, but rather a safety measure for certain members of the prison population (despite the fact they may have committed the same types of crime as non-separated members of the general prison population). The UN Basic Principles for the Treatment of Prisoners clearly lays out the need to treat prisoners “. . . with the respect due to their inherent dignity and value as human beings.”139 The NIPS clearly appears to be valuing separated and un-separated prisoners diVerently, in contravention of Principle 2, which notes: “There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”140 The European Prison Rules are currently being revised. However, the 15th General Report from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, outlines some key changes which are pertinent in this context. We draw the Joint Committee’s attention to the “inclusion of the precepts that ‘persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody’”141 BIRW is also encouraged by the inclusion of the precept: “restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed”.142 We feel that these principles are currently absent in some aspects of the prison regime in Northern Ireland. British Irish rights watch ask the Joint Committee to encourage the Government to reconsider its treatment of separated prisoners, and to be mindful of any regime which discriminates against them.
Women Prisoners and Conditions of Detention at Ash House (Hydebank Wood Young Offenders Centre) British Irish rights watch remains concerned that many of the issues raised in the CAT’s Concluding Observations (2004), and by inspections carried out by NIHRC and HM Chief Inspector of Prisons, have yet to be adequately addressed by the Northern Ireland Prison Service. The relocation of female prisoners in June 2004, from Mourne House, a dedicated women’s facility in an all male prison, to Ash House, part of Hydebank Wood Young OVenders Centre, appear to be problematic. An inspection in January 2005 was critical of conditions at Ash House; most pertinently, the inspectors voiced concern that all female prisoners
136 Northern Ireland Prison Service Annual Report & Accounts for 2004–05. p 41. http://www.niprisonservice.gov.uk/pdfs/PubUploads/Annual%20Report%2004-05.pdf 137 Ibid p 41. 138 Email correspondence between BIRW and Northern Ireland Prison Service 12.08.05. 139 Principle 1, UN Basic Principles for the Treatment of Prisoners. http://www.unhchr.ch/html/menu3/b/h—comp35.htm 140 Principle 2, UN Basic Principles for the Treatment of Prisoners. http://www.unhchr.ch/html/menu3/b/h—comp35.htm 141 15th General Report. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 22.09.05. www.cpt.coe.int/en/annual/press/2005-09-22-eng.htm 142 Ibid. 3358392032 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 128 Joint Committee on Human Rights: Evidence
were held at the same security rating, regardless of oVence, and that this regime was over-restrictive.143 BIRW is concerned that the location of the facility on a shared site with male prisoners is ensuring that female prisoners are held in restrictive conditions that are disproportionate to their crime and security risk. BIRW would be interested to know the details of the review of the level of search policy which was to be carried out by the NIPS following the judicial review in Karen Carson’s case.144 Karen Carson brought a case against the Northern Ireland Prison Service in which she alleged she was subjected to a scheme of disproportionate strip searching following visits. The judgment indicated that the Prison Service needed to demonstrate that its search policy was proportionate and necessary, and took account of Articles 3 and 8 of the European Convention. While BIRW acknowledges the need to protect the safety of prisoners and prison oYcers, excessive strip searches have proven humiliating and degrading for prisoners, particularly for women. BIRW ask the Joint Committee to encourage the NIPS to clarify its search policy in response to this judgment. British Irish rights watch is impressed that the NIPS has increased the number of female prison oYcers at Ash House, where 28 out of 38 prison oYcers are now women.145 However we are concerned that prison oYcers working with women who may be suicidal, depressed or prone to self-harming, may not have had adequate training. We are also concerned by the continued presence, of young women oVenders (ie under 18 years of age) in the same regime as adult women prisoners. Inspections have indicated that there are not the appropriate educational and social facilities for these minors. We also have concerns that some prison staV are unaware of child protection issues, and thus unable to oVer young women oVenders the best care within a prison environment.146 We request the Joint Committee to encourage the Government to review levels of staV training within the NIPS, in particular for those oYcers dealing with girls or vulnerable women. BIRW ask the Joint Committee to urge the NIPS to review the recommendations set forth in the Ash House Inspection, and other inspection reports, and to implement a programme of regime reform.
Prison Staff BIRW welcomes the announcement made by the NIPS to encourage applications from women and Catholics, who, the service acknowledges, are currently under-represented on the workforce.147 The domination of the prison service by Protestants ensures that oYcers do not reflect the population they serve; and this can lead to discrimination/harassment of nationalist prisoners. We are also concerned about the disproportionate influence on the management of prisons wielded by the Prison OYcers Association, the prison oYcers’ trade union. Prison oYcers often challenge managers’ decisions and orders as being in contravention of agreements made with the POA, and POA oYcials can and do act as intermediaries between staV and managers. This aVects the day-to-day management of prisons and weakens managers’ authority. We believe that the prison service as a whole would benefit from a complete overhaul similar to that undertaken for the police.
Human Rights Training British Irish rights watch believe that, in line with Article 10 of the Convention against Torture, human rights training for prison oYcers should be ongoing, rather than limited to small elements of induction training. We would raise concern by the fact that only 77% of planned training days were delivered in 2004–05.148
143 Report on an unannounced inspection of the imprisonment of women in Northern Ireland, Ash House Hydebank Wood Prison. HM Chief Inspector of Prisons and the Chief Inspector of Criminal Justice in Northern Ireland. 28–30 November 2004. p4. http://www.niprisonservice.gov.uk/pdfs/PubUploads/ Ash%20House%20Final%20Doc%2016%20May%202005%20with%20cover.pdf 144 Judicial Review judgment. NIPS Press release. 09.04.05. http://www.niprisonservice.gov.uk/publicat-home.htm 145 Report on an unannounced inspection of the imprisonment of women in Northern Ireland, Ash House Hydebank Wood Prison. HM Chief Inspector of Prisons and the Chief Inspector of Criminal Justice in Northern Ireland. 28-30 November 2004. p 4. http://www.niprisonservice.gov.uk/pdfs/PubUploads/ Ash%20House%20Final%20Doc%2016%20May%202005%20with%20cover.pdf p 21. 146 This issue had been previously raised in the Summary Report on the Mourne House Enquiry. Northern Ireland Prison Service, January 2005. There is no public documentation to indicate that recommendations on staV training have been introduced. http://www.niprisonservice.gov.uk/pdfs/PubUploads/A%20Report%20of%20the%20Mourne%20House%20Enquiry.pdf 147 Night Custody OYcers. Press Release. 06.09.05. Northern Ireland Prison Service. http://www.niprisonservice.gov.uk/jobs.cfm 148 Northern Ireland Prison Service Annual Report & Accounts for 2004–05. p 5. http://www.niprisonservice.gov.uk/pdfs/PubUploads/Annual%20Report%2004-05.pdf 3358392032 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 129
We would therefore welcome the assistance of the Joint Committee in asking the Government for an independent and urgent review of the human rights training provided to prison staV.In particular, we would like such a review to examine the extent and content of human rights training, specifying the degree of human rights training incorporated into induction training for new prison oYcers, and the amount of ongoing human rights training to be provided to existing prison oYcers.
Prisoner Ombudsman and Complaints Procedure
British Irish rights watch welcomed the principle that prisoners should have an eVective mechanism for making complaints. However, BIRW feels that a Prisoner Ombudsman, like the oYce of the Ombudsman created in 2000 for the NIPS, should encourage transparency and accountability within the prison system. The system of prisoner complaints and the creation of the post of Prisoner Ombudsman were the subject of a public consultation. BIRW rejected the review-body’s proposal outright as we did not believe that it would create an eVective, independent and expeditious prisoner complaints procedure.149 The Prison Service announced a slightly modified version of the proposed ombudsman and complaints system.150 This revised proposal does not, in our view, oVer an adequate mechanism for prisoners to complain about their treatment in detention. In particular, we do not think that it is appropriatetorequirea prisoner to make his or her initial complaint to the person whose decision or action is the subject of the complaint. Nor do we consider it necessary or expeditious for there tobethreeinternal stages for a complaint to follow before it reaches the Ombudsman. British Irish rights watch also believe that the Ombudsman should have much greater access to necessary documentation in order to ensure that he can do a thorough and eVective job.
The Prisoner Ombudsman will only consider complaints referred to him after the exhaustion of the internal NIPS complaints process.151 A recent inspection of Ash House indicated that information available to prisoners about the complaints procedure was inadequate, and that few were aware of how to access the appeals process.152 Prisoners were unhappy about the manner in which complaints were dealt with, and found the process unfair. Systems for monitoring or tracking complaints were felt to be unsatisfactory.153 An inspection of Magilligan Prison also revealed consistently low results against benchmark standards for prisoner complaints. For instance, 23% of prisoners stated they had been encouraged to withdraw a complaint, against a benchmark of 13%.154 Likewise, only 30% of prisoners felt their complaint had been dealt with fairly.155 BIRW is concerned that weaknesses in the system at this early stage, will undermine the purpose and mandate of the Prisoner Ombudsman.
BIRW is also concerned that there is an absence of a centralised system for the management and monitoring of complaints within the Northern Ireland Prison Service.156 The UK Government submission to UNCAT indicated that such a system would be introduced.
British Irish rights watch request the Joint Committee to ask the Government if such a system has now been implemented. British Irish rights watch encourages the Committee to ask the Government to review the prisoner complaints procedure of the Northern Ireland Prison Service.
149 British Irish rights watch response to the Northern Ireland Prison Service’s proposals for a prisoner ombudsman, May 2004. 150 Outcome of a Public Consultation on Proposals for the Introduction of a Revised Prisoner Complaints Procedure and Prisoner Ombudsman. 21.09.04. http://www.niprisonservice.gov.uk/consultation.htm 151 Press release: Prisoner Ombudsman for Northern Ireland Appointed. 25.02.05. http://www.niprisonservice.gov.uk/publicat-home.htm 152 Report on an unannounced inspection of the imprisonment of women in Northern Ireland, Ash House Hydebank Wood Prison. HM Chief Inspector of Prisons and the Chief Inspector of Criminal Justice in Northern Ireland. 28–30 November 2004. p 30. http://www.niprisonservice.gov.uk/pdfs/PubUploads/ Ash%20House%20Final%20Doc%2016%20May%202005%20with%20cover.pdf 153 Ibid p 13. 154 Report on an unannounced visit to Magillan Prison. HM Chief Inspector of Prisons and the Chief Inspector of Criminal Justice in Northern Ireland. 20–24 September 2004. pp 32–33 http://www.niprisonservice.gov.uk/pdfs/PubUploads/Magilligan%20FINAL1.pdf 155 Ibid p 32–33. 156 Report on an unannounced inspection of the imprisonment of women in Northern Ireland, Ash House Hydebank Wood Prison. HM Chief Inspector of Prisons and the Chief Inspector of Criminal Justice in Northern Ireland. 28–30 November 2004. p 30 http://www.niprisonservice.gov.uk/pdfs/PubUploads/ Ash%20House%20Final%20Doc%2016%20May%202005%20with%20cover.pdf 3358392032 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 130 Joint Committee on Human Rights: Evidence
BIRW welcomes the “Blueprint for Strategic Development” instigated as a result of the Hamill Report; especially those “strands” which address regime development for women prisoners, and the prison estate.157 However, we remain concerned that the focus of any changes to prisons in Northern Ireland is based on cost eVectiveness, with a marginalisation of prisoner welfare. We request the Joint Committee to encourage the Government to adopt a rights-based approach to strategic development.
Investigations,Inquests and Inquiries
CAT Conclusions and Recommendations “C Concerns 4(f) the investigations carried out by the State party into a number of deaths by lethal force arising between the entry into force of the Convention in 1988 and the Human Rights Act in 2000 which have failed to fully meet it international obligations. D. Recommendations 5(k) the State party should take all practicable steps to review investigations of deaths by lethal force in Northern Ireland that have remained unsolved, in a manner, as expressed by representatives of the State party, ‘commanding the confidence of the wider community’.” British Irish rights watch welcomes the UN Committee against Torture’s concern about the aforementioned issues. In our submission to UNCAT (2004) we outlined several specific elements of these issues, which we feel it would be beneficial to re-visit: — Human Rights Act, the Convention against Torture, and the McKerr case — Inquests — Inquiries Act 2005
Human Rights Act, the Convention against Torture and the McKerr Case While British Irish rights watch was enthusiastic about the introduction of the Human Rights Act 2000, two crucial court decisions have impacted upon the way the European Convention on Human Rights has been incorporated into domestic law. In particular they have aVected the manner in which the state investigates deaths by lethal force. British Irish rights watch was dismayed by the House of Lords decision in McKerr (March 2004), in which we were third party interveners.158 The decision significantly limited the breadth of the Human Rights Act. The Lords held that the Human Rights Act, which came into force on 2 October 2000, merely gave eVect to European Convention rights in domestic law. Individuals, whose cases arose from incidents before the 2 October 2000, could not exercise their Convention rights before the domestic courts. Furthermore, claims arising from the procedural rights stemming from Article 2, such as the right to an eVective investigation, even if they arose after October 2000, could not engage Human Rights Act protection if the death happened before that date. This decision completely negated the eVect of the earlier McKerr ruling of the European Court of Human Rights.159 Moreover, the House of Lords’ decision stands in stark contrast to two other cases—not connected to Northern Ireland—decided on the same day as the McKerr case. In these other cases the issue of retrospection was simply not raised and the Lords applied the Act without taking any point on the issue.
157 Blueprint Strategic Development Programme. An update for stakeholders, July 2005. http://www.niprisonservice.gov.uk/ press/press-more.cfm?press—id%205. The Hamill Report was a review of the Northern Ireland Prison Services EYciency Programme. The Hamill Review’s terms of reference were: “To review, and report with recommendations on, the NIPS strategy for reducing unit costs, having regard to — the magnitude of the excess over unit costs in GB; — the scope for more eYcient deployment of staV; — opportunities for replacing prison oYcers, in respect of duties which do not involve the full range of prisoner supervision responsibilities, whether by employing staV in lower pay bands, or by contracting work out; — all other options for reducing staV and improving eYciency; and — the forecasts of prisoner numbers and places, how they will impact on NIPS costs, and the impact on these forecasts of expected changes in crime rates, detection and prosecution rates, sentencing policy and reconviction rates, while recognising the political context of prisons in Northern Ireland, the pressures brought about by the implementation of the Steele report, and the general need for the safe supervision of prisoners.” 158 Gervaise McKerr was killed by the RUC in 1982 along with two other men. No-one was convicted for his murder. Inquests into the deaths were abandoned. The European Court of Human Rights found in 2001 that the UK had violated Article 2 of ECHR in its failure to properly investigate McKerr’s murder. McKerr’s family was awarded compensation—citing the failure to carry out an eVective investigation meant that the family must have “suVered feelings of frustration, distress and anxiety . . . which is not suYciently compensated by the finding of a violation of the Convention.” McKerr v. The United Kingdom, Judgment, [2001] ECHR 325, 4 May 2001, at para 181. In May 2001, the Court also found violations of Article 2 by the United Kingdom due to lack of eVective investigations in the Jordan case, the Kelly and others case, and the Shanaghan case. The Court awarded £10,000 to each of the victims’ families aVected. 159 The UK’s failure to implement the Court’s ruling in McKerr, Jordan, Kelly and Shanaghan is still before the Council of Ministers. 3358392032 Page Type [O] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 131
BIRW welcomed the decision made of the Court of Appeal in Commissioner of Police for the Metropolis v Christine Hurst.160 The Court of Appeal upheld the principle, as set out in section 3 of the Human Rights Act 1998, that all legislation should be read and given eVect in a manner compatible with the convention rights listed in the Act—regardless of when that legislation was enacted. The repercussions for investigations into lethal force killings by the state, between 1988 and 2000 are viewed positively by BIRW. The Council of Europe, Committee of Members, concluded in February 2005, that there was an “. . . obligation under the Convention to conduct an investigation that is eVective ‘in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible’, and the Committee’s consistent position that there is a continuing obligation to conduct such investigations inasmuch as procedural violations of Article 2 were found in these cases.”161 The implication of this conclusion is that the UK Government is now fully aware of its responsibilities to carry out investigations into unlawful deaths, in a manner compliant with Article 2. British Irish rights watch requests that the Joint Committee ask the Government to set out the rationale for its position on eVective investigations under Article 2 of the ECHR; and to outline what steps it is taking to provide investigations into all deaths irrespective of when they took place.
Inquests BIRW welcomed, in 2003, the conclusions of the Luce Review into Death Certification and Investigation in England, Wales and Northern Ireland. The recommendations in the report clearly acknowledged the need for the inquest system in Northern Ireland to be substantially reformed. The system, as it stood, was in disarray, with the power of the coroner being extremely limited, and permitting only an examination of the direct cause of a person’s death, rather than the circumstances surrounding their death.162 This review, combined with judgments in Jordan, explored whether section 3 of the Human Rights Act 1998, which says that so far as possible legislation must be read and given eVect in a way which is compatible with Convention rights, means that, McKerr notwithstanding, inquests held after the Human Rights Act came into force should be conducted in a way that is compatible with Article 2.163 Specifically, and following the judgment of the House of Lords in Middleton, the Court of Appeal has been grappling with the interpretation of the word “how” in relation to a death. Nicholson LJ, who gave the judgment in the Bradley case that “how” means “in what manner”, overturned himself in Jordan and said that he now believed that “how” should be interpreted as meaning “by what means and in what circumstances”. This judgment was given on 10 September 2004. On 14 January 2005, a diVerently constituted Court of Appeal, dealing with the issue of disclosure in McCaughey and Grew164, held that section 3 of the Human Rights Act 1998 did not apply to two deaths arising in 1990, and that the applicants were not entitled to an Article 2-compliant inquest. BIRW remains consistently disappointed by the Government’s failure to acknowledge and implement the Luce review recommendations. These recommendations included: “22. The coroner should be given explicit powers to determine the scale and scope of his investigation; to obtain any document necessary to his investigation; and to enter premises. 23. The coroner should be given explicit powers to investigate any death on his own initiative whether or not it had been formally reported to him; and to investigate any group of deaths which have already been certified if, in retrospect, there are grounds to think there might have been common factors not previously identified. 27. Death investigations should so far as is necessary find the identity, time and place of death and medical cause of death; and examine the immediate circumstances in which the death was
160 Troy Hurst was murdered by a mentally ill neighbour. An inquest was opened into his death, but adjourned because a man was charged, and eventually convicted of manslaughter. Mrs Hurst, Troy’s mother, wanted the inquest to be re-opened to investigate the roles of Barnet Council, Barnet Health Authority and Metropolitan Police in her son’s, murder. The Coroner declined on the principle that all the matters that could be ascertained at an inquest, had been addressed in the criminal trial, and this was compatible with Article 2, and the right to an investigation. The Divisional court disagreed that there had been compliance with Article 2. 161 Council of Europe, Committee of Ministers. Interim Resolution ResDH (2005)20, Action of the Security Forces in Northern Ireland (Case of McKerr against the United Kingdom and five similar cases). Measures taken or envisaged to ensure compliance with the judgments of the European Court of Human Rights in the cases against the United Kingdom listed in Appendix III (Adopted by the Committee of Ministers on 23 February 2005 at the 914th meeting of the Ministers’ Deputies). 162 Inquests can only deliver findings on the identity of the deceased and how, when and where he or she died. Coroners (Practice and Procedure) Rules (Northern Ireland) 1963, rule 22 (1). In Re Bradley and Another’s Application [1995] NI 192, it was determined that “how” means “in what manner” rather than “in what broad circumstances.” However, in a sign that the judicial position may be changing, on 10 September 2004, Nicholson LJ stated that he was prepared to accept that the word “how” should have a broader meaning so that a coroner could investigate the planning and carrying out of an operation by the security forces that led to the death of Pearse Jordan. See In the matter of an application by Hugh Jordan for judicial review and in the matter of a decision taken by the Lord Chancellor and In the matter of an application by Hugh Jordan for judicial review and In the matter of a decision taken by the Coroner, 2004 NICA 30, 10 September 2004. 163 In the matter of an application for judicial review by Hugh Jordan and in the matter of a decision made by the Lord Chancellor, and In the matter of an application for judicial review by Hugh Jordan and in the matter of a decision made by the Coroner, [2004] NICA 29 (1). 164 Police Service of Northern Ireland and Owen McCaughey & Pat Grew, [2225] NICA 1. 3358392032 Page Type [E] 22-05-06 23:13:23 Pag Table: COENEW PPSysB Unit: PAG1
Ev 132 Joint Committee on Human Rights: Evidence
discovered, the events immediately leading up to the death, relevant circumstances and history of the deceased, the actions of other individuals where relevant, any management or regulatory systems relevant to the protection of the deceased, and the role of any relevant emergency services.”165 Most pertinently, an absence of legislation on reforming the inquests system means that the inherent problems within the system remain. As a result of Government failure, inquests in Northern Ireland will continue to be ineVective, and fail to ensure compliance with the procedural obligations of Article 2 of the European Convention.166 The rules governing inquests in Northern Ireland have been amended so that witnesses who may have been responsible for a particular death can be compelled to attend.167 This change, by itself, does not, however, go nearly far enough to meet the UK’s obligations under Article 2. We ask the Joint Committee to encourage the Government to outline its formal response to the Luce Review, and to indicate what changes will be made to the inquest system. British Irish rights watch welcomes recent proposals by the Northern Ireland Court Service to modernise the coroner’s service, which include making the oYce of the coroner a full-time post and improving the procedure for investigating deaths.168 However, we are concerned that the three year consultation process has caused the system to become eVectively paralysed, with a huge backlog of cases and a flood of applications for judicial review of coroners’ decisions.169 We request the Joint Committee to ask the United Kingdom Government how it proposes to deal with the backlog of inquests in Northern Ireland and what changes it will introduce to ensure that inquests are Article 2 compliant.
Inquiries Act 2005 British Irish rights watch has long called for a system of eVective inquiry into the use, and particularly the abuse, of lethal force in Northern Ireland. In May 2002, the UK and British Governments appointed a Canadian judge, to review six cases where collusion had been alleged. In Northern Ireland, these were the deaths of Patrick Finucane, Rosemary Nelson, Billy Wright and Robert Hamill. In April 2004, following the recommendations set out in Judge Cory’s report, three public inquiries were announced. However, the Finucane Inquiry was eVectively put on hold until the end of the criminal trial of Ken Barrett (found guilty in September 2004).170 While the Nelson and Hamill inquiries were placed within the framework of the Police (Northern Ireland) Act 1998, and the Wright Inquiry within the Prison Act 1953, the Finucane Inquiry is set to fall under the new powers of the Inquiries Act 2005. BIRW has made extensive submissions to the Government about the inadequacies of the Inquiries Act 2005. In particular, we are concerned by the removal and transfer of powers to control inquiries from independent chairs to government ministers. These powers include: the decision whether there should be an inquiry; its terms of reference; appointment of its members; public access; the withholding of costs should the inquiry move beyond its terms of reference and the publication of the final report. These issues have a direct impact on the independence of an inquiry, particularly if a minister has to look into the actions of his or her own department. Where Article 2 of the ECHR (right to life) comes into play, an Inquiry under this Act would not be compliant. In relation to the Finucane case, Judge Cory himself has stated: “it seems to me that the proposed new Act would make a meaningful inquiry impossible”. In cases as sensitive as the Finucane murder, the Inquiries Act operates as a direct block to any eVective investigation to be carried out. In the first place, the Secretary of State for Northern Ireland will be the only person who can decide whether there should be an inquiry into the Finucane case at all (section 1). He could, if he chooses, simply refuse to hold an inquiry. On the assumption that there is an inquiry, the Secretary of State will decide its terms of reference (section 5). The only person he needs to consult about the terms of reference is the chair of the inquiry (section 5(4)), whom he appoints (section 4). He need not consult the Finucane family, or Sir John Stevens, who conducted the police investigation, nor Judge Cory, who enquired into the case at the joint request of the British and Irish governments. The Secretary of State will appoint the inquiry’s panel members (section 4). He must ensure that the panel has the necessary expertise (section 8), but persons with a direct interest in the matter under inquiry, or a close association with an interested party, can be appointed so long as doing so could not “reasonably be regarded as aVecting the impartiality of the inquiry panel” (section 9). Once
165 Death Certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review 2003,Cm 5831 [hereinafter Luce Report], Chapter 21. 166 Hugh Jordan v. The United Kingdom, [2001] ECHR 323, 4 May 2001, at para 130. 167 Coroners (Practice and Procedure) (Amendment) Rules (Northern Ireland) 2002. 168 Modernising the Court Service. 01.04.05. http://www.courtsni.gov.uk/en-GB/Publications/Press—and—Media 169 The Northern Ireland Court Service reported that at the end of 2003 a total of 1,392 cases were outstanding before Northern Ireland’s coroners, not including figures for East Tyrone and Magherafelt, and Fermanagh and Omagh. See Northern Ireland Court Service, Judicial Statistics 2003, available at http://www.courtsni.gov.uk 170 Patrick Finucane was a defence lawyer who was murdered in 1989. Since then credible allegations have emerged of collusion by the army, the police, the intelligence services and possibly even the government in his murder. 3358392033 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 133
again, the Minister need not consult anyone about who to appoint to chair the inquiry, and need only consult the chair about the appointment of other panel members (section 5(4)). One of the minister’s strongest powers is his ability to issue a restriction notice (section 19). Such a notice can determine whether all or part of the inquiry should be held in public. In theory, an inquiry could be held entirely behind closed doors. The Secretary of State has already said that much of any Finucane inquiry would have to be held in private. It is possible that the Finucane family themselves, and even their lawyers, would not be allowed to be present during some of the hearings. Nor would it be possible for independent human rights groups to send observers to closed sessions in order to place any inquiry under independent scrutiny. A restriction notice can also determine whether evidence placed before an inquiry can be disclosed or published. There is the possibility that many crucial documents relating to the Finucane case will not be made public on the grounds that they deal with sensitive intelligence matters. Finally, the Secretary of State will decide how much, if any, of the inquiry’s final report will be make public (section 25). In a number of media interviews following his statement on 1 April 2004, the Secretary of State said that hearings in the Finucane case would have to be held mostly in private. On 1 April 2005, speaking at the United Nations Commission on Human Rights, the Irish Ambassador to the UN, HE Maire Whelan, was reported as having made the following statement: “MARY WHELAN (Ireland) said the case of Pat Finucane, along with Rosemary Nelson’s, had been addressed by the appropriate special procedure of the Commission. The Government had welcomed the publication of reports on the murders, and the announcement that public inquiries would be set up into the circumstances surrounding the murders, and these inquires had now been established and had begun their initial investigations. The British Government had announced that an inquiry would be established on the basis of new legislation. While welcoming this, there was concern for the provisions of the legislation proposed. Any inquiry into this case should be public to the degree possible, and any disputes about this should be independently arbitrated by the courts. Any such inquiry should also be independent of the Government. The Inquiries Bill would not allow for the required independence. The family of Pat Finucane and the community at large wanted the issue of collusion publicly and independently examined to establish the facts. However, the family, after battling for almost 15 years, were now being asked to accept something that failed to fulfil the required criteria. They had made it clear they would not cooperate with an enquiry established under the Inquiries Bill. The Government of Ireland with regret asked again that the appropriate special procedure of the Commission continue to give attention to the case of Mr. Finucane.” The United Kingdom exercised its right of reply: “NICK THORNE (United Kingdom), speaking in a right of reply in response to the statement made by Ireland on the issue of the inquiry into the death of Pat Finucane, said the United Kingdom continued to believe that an inquiry held under the aegis of the new Inquiry Bill was the best way forward. The independent Canadian Judge who had overseen the investigation into allegations of collusion in the death of Pat Finucane said that the subsequent Inquiry should be held to the greatest extent possible in public, and this was what would happen. The new Bill did not allow anyone to withhold information from the Chair of the Inquiry. The Inquiry would have to be balanced with national security, and thus a large proportion of the Inquiry would probably have to be held in private.” BIRW supports the Finucane family in their decision to boycott the inquiry. This case raises such serious issues concerning state collusion, that a public inquiry is the only possible way to satisfy the public interest issues it raises. We believe a public inquiry is the only mechanism by which justice can be achieved for Patrick Finucane. We call on the Joint Committee to urge the Government to uphold its promises and to take immediate steps to establish an independent public inquiry into the murder of Patrick Finucane, which is Article 2 compliant. The Inquiry into the murder of Billy Wright, though initiated under the Prison Act (Northern Ireland) 1953, is seeking conversion to an Inquiry under the Inquiries Act 2005.171 We understand that the reason behind this, is a belief that the terms of the Prison Act are not suYciently broad to allow the Inquiry to examine the conduct of all state authorities with regard to the murder of Billy Wright. Although Lord MacLean’s opening statement contained an acknowledgement of the need for breadth of the terms of reference for the Inquiry and the assumption that issues of collusion will be addressed, BIRW is strongly opposed to any attempt to convert the Inquiry. Should it be converted, the Inquiry will lose all vestiges of independence because it will be open to the Secretary of State to, for example, redefine the terms of reference, replace the current panel and suppress evidence. Secondly, though Lord MacLean placed emphasis on the need for this inquiry to be public, BIRW is concerned that much of it will be held in private if it is converted. This latter element deprives both the Wright family, and the wider public in Northern Ireland, of the ability to hold state bodies to account.
171 Billy Wright, an LVF member, was murdered on 27 December 1997 in the Maze prison. He was shot and killed in a prison van within prison grounds, by three members of INLA who were imprisoned in the same block. 3358392034 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 134 Joint Committee on Human Rights: Evidence
We call on the Joint Committee to oppose the conversion of the Billy Wright Inquiry, and to ensure that any Inquiry convened is Article 2 compliant. BIRW draws the Joint Committee’s attention to the fundamental flaws within the Inquiries Act 2005, and calls on the Government to make amendments to the Act.
Changes to Policy and the “War on Terror”
Other Issues we Feel to be Relevant to the Joint Committee’s Inquiry As a result of the suicide bombings in London on 7 July 2005, and of global experiences of terrorism since 11 September 2001, a raft of legislative and administrative measures have been introduced in the United Kingdom. British Irish rights watch, while mindful of the need to protect national safety, is alarmed by the nature of many of these measures. The majority have appeared before in Northern Ireland—where experience has shown that a curtailment of civil liberties contributes to the abuse of human rights, and is thus an entirely inappropriate and illegitimate method of combating terrorism. BIRW draws the Committee’s attention to several of these measures which cause us concern: — Use of lethal force — Changes to court procedures — Minorities
Use of Lethal Force British Irish rights watch was extremely concerned at the introduction and implementation of Operation Kratos by the Metropolitan Police Force; and the subsequent death of Jean-Charles de Menezes in Stockwell underground station on 22 July 2005.172 De Menezes, a Brazilian national, was trailed by security personnel from his home in Tulse Hill to Stockwell, under false suspicion of being a suicide bomber. He was followed into Stockwell station and onto a train, where he was restrained and shot seven times in the head.173 While BIRW is mindful of the need to protect Londoners from suicide bombers, we are concerned about the implementation of a “shoot to kill” policy, and the clear operational and procedural problems which exist within Operation Kratos. The implementation of Operation Kratos raises serious questions especially in situations where there is room for error about the identity and intention of suspects. Significantly this policy does not appear to have undergone any consultative process nor been subject to Parliamentary debate, or Ministerial approval.174 British Irish rights watch believe that changes in police policy, which have a direct bearing on the right to life, as outlined under the UK’s international commitments to human rights, should be subject to a full Parliamentary review. BIRW ask the Joint Committee to encourage the Government to seek a parliamentary review of the use of lethal force, and to pursue open and transparent disclosure on the subject. British Irish rights watch is concerned that the “shoot to kill” policy is proving problematic within the police force itself. The Metropolitan Police Commissioner, Sir Ian Blair claims that it is the “least worst way of tackling suicide bomber . . . I am not certain the tactic we have is the right tactic, but it is the best we have found so far.”175 His attitude seems to indicate an unfocused policy—which is reactive and not proactive, with a potential for unlawful killings.176 BIRW disputes Sir Ian Blair’s claim that there is “nothing cavalier or capricious” about Operation Kratos; we feel that De Menezes’ death proves that such a policy has unpredictable and dangerous results.177 There have been three previous incidents involving the use of lethal force, prior to the death of De Menezes, of which we are aware; all resulted in the deaths of unarmed men, none of whom represented a threat to national security at the times of their deaths. The deaths of Harry Stanley, Diarmuid O’Neill and Neil McConville all illustrate the tragic problems which can arise when faulty intelligence coincides with the use of lethal force.178
172 Operation Kratos is understood to be a policy introduced six months after the events of 9/11 which addresses the prevention of suicide bombings; work done with Israeli and Sri Lankan security forces indicated that shots should be fired at the head, rather than the area of critical mass (torso), to prevent detonation. Research carried out by the International Association of Chiefs of Police has indicated that if a warning is given to the suspect, then bombers often detonate their explosives. IACP Training Key <581 Suicide Bombers Part I. www.theiacp.org 173 Brazilian shot eight times. BBC News. 25.08.05 and New claims emerge over Menezes death. The Guardian. 17.08.05. 174 Anger over “shoot to kill” policy grows. The Guardian. 31.07.05. 175 Death in Stockwell: the unanswered questions. The Observer on Sunday, 14.08.05. 176 Sir Ian Blair, “refuses to rule out other innocent people being shot in similar circumstances” Quoted in Ibid. 177 Met chief tried to stop shooting inquiry. The Guardian. 18.08.05. 178 Harry Stanley was shot in 1999 in Hackney, East London, when the table leg he was carrying was mistaken for a sawn-oV shot gun. Diarmuid O’Neill’s death is addressed in more detail further on in this submission (footnote no. 144) He was shot and killed in Hammersmith hotel by police. Neil McConville was killed by police in Northern Ireland in April 2003, following a car chase. 3358392034 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 135
The Israeli Defence Force, very experienced in dealing with suicide bombings, has a policy of shoot to kill when tackling suicide bombers. However, it has often managed to avoid using lethal force, by isolating the individual, training guns on the suspect, and then making the individual remove the “bomb pack” themselves, or with the use of remotely controlled robots.179 In this respect, a properly isolated suicide bomber is only a danger to his/herself, and the security services have had no need to use lethal force. BIRW ask the Joint Committee to call upon the police to review their policy of using lethal force in suspected suicide bombing situations, in line with global best practice. British Irish rights watch is concerned by media reports of the involvement of Special Forces soldiers in this incident.180 In Northern Ireland, we have seen the problems of employing the army in civilian situations. In particular, the use of the 14 Int, an SAS unit, which was responsible for a number of killings in Northern Ireland that British Irish Rights Watch considers unlawful.181 We are particularly disquieted by allegations of army personnel wearing police uniforms when the status of the army in police operations is obscure.182 The Ministry of Defence has confirmed that the army provided technical assistance in the Stockwell operation, but has claimed that army personnel were not directly involved in the shooting of De Menezes.183 However, this is contradicted by a media report which states that a unit comprising Special Reconnaissance Regiment soldiers, was created in April to combat terrorism, and were present at the shooting.184 We are worried by the blurring of boundaries between the military and police, and consider that the use of the military in such situations should be subject to close political supervision. We should like to have details of the agreement or authority that permits military involvement in police operations in London. The use of the military in civilian situations, combined with the use of lethal force, has a direct impact upon accountability for such actions. Killings by lethal force carried out by the RUC in Northern Ireland are now subject to retrospective investigation by the Police Ombudsman’s oYce and the PSNI’s Historic Enquiries Team. In contrast, civilian deaths carried out by the army were, and are still not subject to the same level of scrutiny.185 We urge the Joint Committee to encourage the Government to provide a transparent account of the relationship between the army and the police force. We would like assurances that if army personnel continue to be involved in police operations, at an operational level, they will be subject to the same standards of transparency and accountability currently applied to the police. We would like to draw the Committee’s attention to the case of Diarmuid O’Neill, a suspected member of an IRA Active Service Unit, who was shot by a London Metropolitan Police OYcer on 23 September 1996.186 There are several similarities with the shooting of De Menezes. Firstly, the Security Services failed to pass relevant information to the police team which carried out the operation, including the fact that O’Neill and his associates were unarmed. The level of force used was disproportionate to the threat posed by the men; and SO19 failed to issue a verbal warning before resorting to lethal force.187 Members of the police team in charge of the operation were emotionally charged—they had watched videos of the bombing of Canary Wharf beforehand.188 Finally, the police and media misled the public by the use of prejudicial language and false information. It would appear that the death of De Menezes took place under comparable circumstances—indicating that few lessons have been learned since Diarmuid O’Neill’s death.
179 For example, where bombers are caught at checkpoints. Wafa al-Bis, a female “would be” suicide bomber was intercepted at a checkpoint in the Gaza strip in June 2005. The security services isolated her and instructed to disarm herself (ie remove her suicide bomb belt). Once she had done so, she was arrested, and the explosives safely disposed of. Haaretz Magazine, 01.07.05. www.haaretz.com. See also Husam Abdu, a 14 year old “would be” suicide bomber, who was intercepted in Nablus, West Bank in March 2004, and similarly disarmed. 180 Could this “police oYcer” be a soldier? The Times. 31.07.05. 181 In particular, British Irish Rights Watch would cite the cases of John Boyle killed in 1978 and Patrick DuVy, also killed in 1978. 182 Police draw on lessons from Northern Ireland terror campaign. Financial Times. 16.08.05. 183 Could this “police oYcer” be a soldier? The Times. 31.07.05. 184 Army deployed in London. The Irish Post. 03.09.05. 185 Deaths caused by soldiers in Northern Ireland do come under the remit of the PSNI historic enquiries team. However, BIRW considers these investigations to be insuYciently independent because they are carried out by the police. See McKerr vs UK (2001), where the European Court of Human Rights ruled that the police were too close to the army for an adequate investigation to be carried out. 186 Diarmuid O’Neill, along with four other men, had been under extended surveillance for six weeks. Evidence, indicating that the suspects were unarmed, and had no access to weaponry in the hotel room in which they were living, was not passed on to the SO19 teams who carried out the final operation. The police used CS RIP gas to subdue the suspects, but were then themselves overcome by the fumes. Mr O’Neill was shot six times through the hotel door—the bugs planted by the surveillance team, indicated that he was not a threat—rather he was following the instructions issued to him by a member of the SO19 team. The first inquest into his death was prejudiced by the coroner’s comments regarding the IRA and his choice not to direct the jury on the issue of Article 2 of the ECHR. A verdict of lawful killing was returned. Death of Diarmuid O’Neill. Second Submission to the UN’s Special Rapporteur on Extra-judicial, summary or arbitrary executions. British Irish rights watch. 2001. 187 Six shots were fired at Mr O’Neill, four of which were released in a single burst, contrary to SO19 guidelines. At the start of the raid, the police fired CS RIP rounds, which served to substantially disable both the suspects and the police. Death of Diarmuid O’Neill. Second Submission to the United Nation’s Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions. British Irish rights watch. 2001. 188 Concerns about IRA terrorists during this period is comparable to those currently held about al-Qaeda. 3358392034 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 136 Joint Committee on Human Rights: Evidence
In addition to the case of Diarmuid O’Neill, mistakes have been made in two other shoot-to-kill incidents of which we are aware. Harry Stanley was shot dead by the police in 1999, after someone had told them there was an Irishman in a pub with a sawn-oV shotgun in his bag—in fact, he was a Scot taking a wooden table leg for repair. Neil McConville, aged 21, was shot dead by police oYcers on the evening of 29 April 2003 on a country road in Northern Ireland. The police said that they opened fire because they feared he would run over an oYcer with his car, but media reports said that he had threatened to shoot a police oYcer. A gun was discovered in the well of the passenger’s seat, but it was wrapped up in cloth and there was no ammunition in the gun or the car. It is doubtful whether Neil McConville’s car was in a fit state to knock down a police oYcer. Thus the recent history of shoot-to-kill operations seems to indicate that four unarmed men, who were posing no real threat all, died when they could simply have been arrested. BIRW believe that such operations violate the right to life, and the adoption of a shoot-to-kill policy should be urgently reviewed in light of these incidents. BIRW would like the Joint Committee to encourage the development of a system of “lessons learnt” in lethal force operations. The role of faulty intelligence in De Menezes death is of particular worry to BIRW. Both in Northern Ireland and in the murder of Diarmuid O’Neill in London, BIRW has seen the negative and occasionally fatal implications of bad intelligence work. In the case of De Menezes, he left a multi-occupancy building, the address of which was found in the belongings of one of the 7 July bombers; the surveillance oYcer on duty was unable to identify De Menezes as a suspect, as he was away from the camera at the time.189 De Menezes was recorded as an “IC1” ie a Caucasian, and not of Afro-Caribbean or Asian origin as the alleged suspect was believed to be.190 De Menezes walked from his home to a bus stop, and then boarded a bus to Stockwell. Leaked Independent Police Complaints Commission documents indicate: “The current strategy around the address was as follows: No subject coming out of the address would be allowed to run, and that an interception should take place as soon as possible away from the address . . .”.191 De Menezes was not intercepted at any point during his journey. Despite this operational breach, the surveillance oYcers concluded he warranted a code red tactic (ie use of lethal force)—this had occurred by the time he had left the bus twenty minutes later. BIRW is concerned by the speed with which this decision was taken, as well as the failure to properly identify De Menezes.192 Reports have indicated that De Menezes, unaware of being followed, and wearing a light denim jacket, entered the tube normally, picked up a free paper, and boarded the escalator.193 In contrast, guidelines on the identification of suicide bombers cite the following as identifying factors: wearing of heavy clothing, unusual gait, tunnel vision, bags or backpacks, evasive movements and signs of drug use.194 None of those applied to De Menezes. According to eyewitness statements, the first contact that De Menezes had with the police was when an unarmed, plain clothes oYcer restrained him in the tube carriage. The use of Operation Kratos tactics meant that where oYcers “were deployed to intercept a subject there was an opportunity to challenge, but if the subject was non-compliant, a critical shot may be taken.”195 At no point did oYcers make any attempt to intercept or challenge De Menezes, or give De Menezes the opportunity to respond or comply with instructions. Despite being restrained, De Menezes was shot eight times or more.196 BIRW would like clarity on the reason why an unarmed man, who had been physically restrained, was shot and killed, in a clear breach of operational guidelines and policy. We consider this a direct violation of the right to life. Also of concern is the absence of functioning CCTV cameras in Stockwell station.197 London Underground has 6,000 CCTV cameras and Stockwell station has a number of cameras covering the following areas: ticket hall, exit, half the access areas (Routeways) and all the floor area of the platforms.198 London Underground also has CCTV in train carriages. Transport for London itself acknowledges “CCTV images that emerged after the July 7 bombings and the subsequent events that followed, have played a crucial part in police investigations.”199 It seems extraordinary and alarming that all the CCTV cameras in
189 New claims emerge over Menezes death. The Guardian. 17.08.05. There are allegations that this oYcer was a soldier. Met chief tried to stop shooting inquiry. The Guardian. 18.08.05. 190 Fatal mistakes that cost de Menezes his life. The Guardian. 18.08.05. 191 Leaks raise sharp questions about police tactics. The Guardian. 17.08.05. 192 Surveillance oYcers claim: “During the course of this [bus journey], his description and demeanour was assessed and it was believed he matched the identity of one of the suspects wanted for terrorismoVences . . . the information was passed through the operations centre and Gold Command made the decision and gave appropriate instructions that de Menezes was to be prevented from entering the tube system. At this stage the operation moved to code red tactic, responsibility was handed over to CO19 [Scotland Yard firearms unit]. Leaks raise sharp questions about police tactics. The Guardian. 17.08.05. 193 ITV claims to show “police blunders” in Brazilian’s shooting. The Independent. 17.08.05. 194 Paraphrased from The Detection and Prevention of Suicide Bombings. Total Integrated Preparedness Solutions. Vol. 1. No. 10. 18.05.05, quoted in IACP Training Key <581 Suicide Bombers Part I. www.theiacp.org 195 Quoted in Leaks raise sharp questions about police tactics. The Guardian. 17.08.05. 196 Media reports diVer on the number of bullets fired (between eight and eleven) De Menezes family: “give us the truth”. (ITV. 17.08.05), indicates the use of eleven bullets. 197 Death in Stockwell: the unanswered questions. The Observer on Sunday, 14.08.05. 198 JNP Schedule—Appendix 11C. www.tfl.gov.uk. (as on 02.08.05). 199 Eyes on London. www.tfl.gov.uk (as on 02.08.05). 3358392034 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 137
a tube station can be out of operation just 15 days after a major terrorist attack. There have been also been allegations that the CCTV was working, but that the tapes passed to the IPCC were blank.200 Underground staV have denied this.201 Any investigation into De Menezes death will hence have to rely on witness statements, some of which have changed several times since the event.202 BIRW ask the Committee to encourage the Government to ensure that Transport for London has put in place all necessary and functioning measures to protect the public. British Irish rights watch is concerned by the level of force used during this operation. As with the case of Diarmuid O’Neill, it would appear that an excessive number of rounds were fired. If one considers that De Menezes was restrained, the firing of eight or more shots in a contained public space, not only indicates a lack of control on the part of the armed oYcer, but considerable danger to the public. Also, the fact that oYcers delayed their intervention until after he had boarded a train might been decisive in causing a very serious loss of life. BIRW urge the Joint Committee to task the Government to hold an independent review of the number of rounds fired in all incidents of lethal force, and to carry out an assessment of the risks involved for the public. While BIRW is encouraged by the referral of the case to the Independent Police Complaints Commission, we are very concerned by allegations that Sir Ian Blair argued instead for an internal inquiry into the incident, on the grounds of national security.203 We are also concerned that the IPCC were not handed the papers until five days after the event, and that IPCC investigators were not allowed to enter Stockwell station for a further three days.204 We believe this may have contributed to a loss of vital evidence. Respect for human life does not depend on an individual’s right to be in the UK. BIRW hopes that De Menezes’ immigration status will not have an impact upon the Independent Police Complaints Commission’s investigation. We have previously seen the eVects of media and police misinterpretation with the death of Diarmuid O’Neill, who was erroneously described as being armed. By slurring characters and reputations, the police are often able to de-humanise individuals, and prejudice a fair investigation. British Irish rights watch is not aware of any public inquiry into the death of De Menezes, and thus would like to add its voice to that of the De Menezes family in calling for one. Any inquiry must be Article 2 compliant—we do not consider an inquiry as defined by the Inquiries Act 2005 to be appropriate. British Irish rights watch condemns any abuse of lethal force. We urge the Committee to recommend an urgent review of Operation Kratos and call for an end to the shoot to kill policy, on the grounds it is disproportionate and unnecessary. We also ask the Joint Committee to support the De Menezes family’s call for an independent public inquiry.
Changes to Court Procedures Prime Minister Blair’s recently announced pre-trial process for those suspected of terrorist activity are a cause of great concern for British Irish rights watch.205 The new process would allow “secret” evidence to be examined before a juryless court to see if it justified the continued detention of an individual. The proposed courts are similar to Diplock courts used in Northern Ireland. Introduced in 1973 to ostensibly end intimidation of jurors by paramilitaries, Diplock courts sat without jurors and the standard for the admitting confession evidence was lower. The result was a high conviction rate yet numerous claims of miscarriages of justice. The lower standard of evidence and the absence of a jury directly contravenes the right to a fair trial, both of which are proposed with secret courts. The new courts will consider “secret evidence”, the nature of which will not be made available to the defendant. Media reports indicate that some of this evidence may include telephone taps (though this has yet to be oYcially confirmed).206 BIRW is concerned that attempts to introduce such courts into the UK under emergency legislation are illegitimate and represent a gross undermining of human rights. BIRW is also disappointed that while Diplock Courts are being abolished in Northern Ireland under the repeal of emergency laws, the proposed new courts will be introduced in Northern Ireland.207 British Irish rights watch call on the Committee to protect the right to a fair trial, a right which would be denied under this proposed legislation. Prime Minister Blair indicates a need to “increase the number of special judges hearing such cases”, understood to be those cases involving allegations of terrorism.
200 London death shows North policing problems not unique. Sunday Journal. 28.08.05. 201 Ibid. 202 Death in Stockwell: the unanswered questions. The Observer on Sunday. 14.08.05. 203 Met chief tried to stop shooting inquiry. The Guardian. 18.08.05. 204 Menezes probe team briefs family. BBC News. 18.08.05. 205 Mr Blair announced on 5 August 2005 that the Government is investigating the introduction of new court procedures including a pre-trial process. Mr Blair also announced a desire to extend the detention time of suspects. These measures will only apply to those suspected of terrorist activities/involvement/incitement. Prime Minister’s Press Conference. 05.08.05. www.number-10.gov.uk. 206 Secret Terror courts considered. BBC News 09.08.05. 207 Ulster to get secret courts. Belfast Telegraph. 10.8.05. 3358392034 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 138 Joint Committee on Human Rights: Evidence
BIRW would like to see clarification of the meaning of “special judges” and reasoned consideration of their compatibility with the UK’s human rights commitments. British Irish rights watch is concerned by media reports that indicate the Lord Chancellor wishes, through judicial changes, to give national security concerns the same weight in a court of law as a suspect’s human rights.208 We believe that any attempt to undermine judicial independence will have serious and irreversible eVects on the viability of human rights in the UK. BIRW would encourage the Committee to remind the Government of its human rights commitments in relation to the judiciary and to trials generally. In particular, BIRW would call attention to Article 6 (right to a fair trial) of the European Convention on Human Rights, and Articles 9 (right to liberty) and 14 (equality before the courts) of the International Covenant on Civil and Political Rights.
Minorities British Irish rights watch is concerned about reports of possible police harassment of the Asian community—in a manner similar to that employed with the Irish community in Britain during the last three decades. Between 1974 and 1991, 7,052 people were stopped and questioned, had their property searched, or were held by police under the Prevention of Terrorism Act (1974); of these, 86% were released without charge.209 The impact was to drive the Irish community inwards, and aid in the recruitment of IRA terrorists. For British Asians, statistics indicate that between September 2001 and December 2004, 701 individuals were arrested under the Anti-Terrorism Crime and Security Act 2001, of whom only 119 were charged and 19 convicted; the majority of those arrested were Muslim Asians.210 Stop and search statistics indicated that there are almost twice as many searches of Asian people as of white people.211 There has been a 15% increase in the number of Asians stopped under a new policy, introduced after 7 July by police forces in the South East, which no longer requires oYcers to give a reason for their searches.212 We were concerned by the remarks of Chief Constable Johnston of the British Transport Police, who said: “Intelligence-led stop and searches have got to be the way . . . We should not waste time searching old white ladies. It is going to be disproportionate. It is going to be young men, not exclusively, but it may be disproportionate when it comes to ethnic groups”.213 We object to any kind of racial profiling in stop and search procedure—we believe this simply forces terrorists to use diVerent methods, and alienates communities. British Irish rights watch ask the Committee to consider the impact that discriminatory policing can have on minority communities, and make recommendations accordingly. September 2005
20. Further submission from British Irish Rights Watch re Extraordinary Renditions 1. British Irish rights watch (BIRW) is an independent non-governmental organisation that has been monitoring the human rights dimension of the conflict, and the peace process, in Northern Ireland since 1990. Our services are available, free of charge, to anyone whose human rights have been violated because of the conflict, regardless of religious, political or community aYliations. We take no position on the eventual constitutional outcome of the conflict. 2. We welcome the Joint Committee on Human Rights’ decision to include in its consideration of the United Kingdom’s compliance with the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment the issue of the use of UK airports by American aircraft as stopovers in “extraordinary renditions”, the euphemism used by the Americans for the transportation of suspects to jurisdictions where they will be tortured. 3. We also welcome the opportunity to make a submission to the Joint Committee concerning this issue. One of BIRW’s charitable objects is the abolition of torture, an object which we adopted because of the widespread use of ill-treatment in Northern Ireland in the early 1990s, when BIRW was founded, against detainees arrested under counter-terrorism laws, 75% of whom were released without charge. It was because of our experience in Northern Ireland that we decided to join with thirteen other NGOs and other bodies in make a third party intervention in the case of A & Others in the House of Lords. The point at stake in that case is whether UK domestic courts can rely on evidence obtained by torture in a third country. Our Counsel argued that the prohibition of torture and other cruel, inhuman or degrading treatment or punishment has the status of jus cogens. In other words, it is a peremptory norm of general international
208 Judges face human rights shake-up. BBC News. 12.08.05. 209 We did it to the Irish first. The New Statesman. 08.08.05. 210 Question and Answer: Terror laws explained. BBC News. 25.01.05. 211 Government and police must engage communities to build a fairer criminal justice system. Press release. 02.07.04. www.homeoYce.gov.uk 212 Police to get stop and search powers. BBC News. 19.07.05. 213 Asian men targeted in stop and search. The Guardian. 17.08.05. 3358392035 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 139
law. The prohibition on torture is also by its nature obligatio erga omnes—every state has an obligation to humanity to ensure compliance with the prohibition. The prohibition is also cemented into domestic law by way of Article 3 of the European Convention on Human Rights and the Human Rights Act 1998 and is integral to the right to a fair trial, as protected by Article 6. 4. In our view, the same considerations apply to the practice of extraordinary rendition. Such a practice is akin to refoulement to a country that practices torture, a practice which, at least formally and for the time being, the UK has rejected, although we are concerned by the UK’s entering into memoranda of understanding with countries such as Jordan for the return of Jordanians on the fragile undertaking by that country not to inflict torture on those returned214. 5. Extraordinary rendition is an abhorrent practice. It amounts to outsourcing torture. Any country which practices extraordinary rendition is condoning and encouraging torture, which is quite rightly outlawed in the UK. An authoritative article on extraordinary rendition215 suggests that the USA has been practicing it since 1995, and that the main countries used to provide the torture are Egypt, Morocco, Syria and Jordan (hence our concern about the memorandum of understanding). To practice extraordinary rendition is to practice torture by proxy, and is as heinous and illegal as the direct practice of torture. 6. It follows that any country that allows its airspace to be used or its civilian airports or military airbases to be used by a country that practices extraordinary rendition is also condoning and encouraging torture. Such countries make themselves complicit in torture and cannot maintain that they do not practice torture or that they condemn it. 7. Credible allegations have been made that the UK has allowed its airspace, airports, and airbases to be used by the USA in connection with its practice of extraordinary rendition. In February 2005, the BBC’s respected radio current aVairs programme, File On 4, alleged that, “it is known that the American civilian executive jets used to transport the prisoners around the world often pass through British airspace and use British airports. The File On 4 team discovered one was in Glasgow on Monday.”216 The Independent newspaper also reported the same allegation: “Britain is also an operational base for two executive jets regularly used by the CIA to carry out so-called ‘renditions’. One Gulfstream jet—used for taking prisoners to Egypt and Jordan from countries including Sweden and Indonesia—has called regularly at Luton, Glasgow, Prestwick and Northolt airports. A Boeing 737 jet, used for the transfer of prisoners, passed through Glasgow airport on Monday morning on its way to Iraq. Both jets are white and unmarked, apart from their US civilian registration. Inquiries suggest they are owned by US companies which exist only on paper and are almost certainly a front for the CIA.”217 CBS’ flagship current aVairs programme, 60 Minutes, in a report on extraordinary rendition tracked the tail number on the Gulfstream G5 jet, N379P, to Scotland, where it said the aeroplane was apparently refuelling. The documentary claimed that the aeroplane in question had made 600 flights to 40 countries, including 30 trips to Jordan, 19 to Afghanistan, 17 to Morocco, 16 to Iraq, and flights to Egypt, Libya, and Guantanamo Bay.218 In September 2005, the Guardian reported that: “Aircraft involved in the operations [extraordinary renditions] have flown into the UK at least 210 times since 9/11, an average of one flight a week. The 26-strong fleet run by the CIA have used 19 British airports and RAF bases, including Heathrow, Gatwick, Birmingham, Luton, Bournemouth and Belfast. The favourite destination is Prestwick, which CIA aircraft have flown into and out from more than 75 times. Glasgow has seen 74 flights and Northolt 33. . . It is not clear whether any detainees are on board the aircraft when they land in the UK, or whether the CIA is using British airports purely for refuelling and other logistical support. . . Many of the aircraft are operated by a company called Aero Contractors, which was founded by a former chief pilot of Air America, and is based in a remote corner of an airfield in Smithfield, North Carolina. Most of the CIA’s fleet, which includes executive jets, a Boeing 737 and a Hercules transport plane, is owned, at least on paper, by a network of seven other companies. Examination of records in the US shows these seven firms to be a series of shell companies with no premises, and the directors of the companies appear to be fictitious.”219
214 Please see Still at Risk: Diplomatic Assurances No Safeguard against Torture, Human Rights Watch, April 2005. 215 Outsourcigf torture: The secret history of America’s “extraordinary rendition” program, by Jane Mayer, The New Yorker, 2 February 2005. 216 CIA prisoners “tortured” in Arab jails, by Stephen Grey, BBC Internet News synopsis of File on 4 programme transmitted on 8 February 2005 at 8:00 pm. 217 Britain accused over CIA’s secret torture flights, by Stephen Grey and Andrew Buncombe, The Independent, 10 February 2005. 218 CIA Flying Suspects To Torture? CBS Internet News, 6 March 2005. 219 Destination Cairo: human rights fears over CIA flights, by Ian Cobain, Stephen Grey and Richard Norton-Taylor, Guardian, 12 September 2005. 3358392035 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 140 Joint Committee on Human Rights: Evidence
This article also said that in August 2005 Denmark announced that it would not allow its airspace to be used for “unauthorised CIA flights”. Another article from the Guardian claimed that not all of the 210 flights into the UK were connected to extraordinary rendition. It said: “About 150 men have been abducted over the last four years and flown to countries where torture is common.”220 The Sunday Herald has alleged that those subjected to extraordinary rendition are “kidnapped in broad daylight, hooded, drugged, [and] shackled” before being flown to their destinations.221 8. The CIA has publicly admitted allowing what it calls “enhanced interrogation techniques” to be used against persons subjected to extraordinary rendition, as follows: “1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him. 2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear. 3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage. 4. Long Time Standing: This technique is described as among the most eVective. Prisoners are forced to stand, handcuVed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are eVective in yielding confessions. 5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water. 6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.”222 However, these techniques are just the tip of the iceberg. Victims of extraordinary rendition have described lengthy and repeated physical beatings223, beatings with electrical cables224, repeated cuts to the genitals225, electric shocks226, and the use of drugs.227 9. It has also been alleged that the “intelligence” used to decide whom should be subjected to extraordinary rendition is often itself obtained under torture, and that CIA and British intelligence oYcers are often present at the detention centres where torture is carried out on those who have been extraordinary rendered: “. . . many of those taken captive come under suspicion only because some poor soul in a Middle- Eastern torture chamber named them to stop the beating they were enduring. . . But Britain and America aren’t just sending these suspects to torturers and then walking away. We are eVectively in the torture chamber with the victim. Testimony from captives who have been ‘rendered’ suggests that British and American intelligence oYcers are often in the same detention centre while the prisoner is being beaten and abused. Reports claim that once the torture stops, sometimes before it starts, they drop in for a chat, and that the British and American intelligence oYcers will give precise questions for their proxy torturers to put directly to the captive.”228 10. Martin Scheinin from Finland was appointed this year by the United Nations as their Special Rapporteur on the promotion and protection of human rights while countering terrorism. His report singled out the United Kingdom as being one of six countries—the others being the USA, Canada, France, Sweden and Kyrgyzstan—as allowing be complicit in extraordinary rendition and added Algeria and Uzbekistan to the list of destinations where torture is carried out229. It has been reported that the Special Rapporteur has asked the UK a number of questions about its role in extraordinary rendition. He has been quoted as saying: “When several states can, through cooperating, breach their obligations under international law simultaneously, if they are all involved in torture, they all bear their own responsibility. It is my intention to look at acts where more than one state is involved. It is too early to say what will happen with the UK.”230
220 MPs from all parties prepare campaign to halt terror flights from Britain, by Ian Cobain, Stephen Grey and Richard Norton- Taylor, Guardian, 13 September 2005. 221 Torture flights: The inside story, by Neil Mackay, Sunday Herald, 16 October 2005. 222 CIA’s harsh interrogation techniques described, by Brian Ross and Richard Esposito, ABC Internet News, 18 November 2005. 223 “They beat me from all sides”, The Guardian, 14 January 2005. 224 CIA prisoners “tortured” in Arab jails, by Stephen Grey, BBC Internet News synopsis of File on 4 programme transmitted on 8 February 2005 at 8:00 pm. 225 “One of them made cuts in my penis. I was in agony”, The Guardian, 2 August 2005. 226 CIA prisoners “tortured” in Arab jails, by Stephen Grey, BBC Internet News synopsis of File on 4 programme transmitted on 8 February 2005 at 8:00 pm. 227 More CIA links to secret flights of detainees, Mail & Guardian Online, 15 November 2005. 228 Torture flights: our role in US brutality shames Britain, Editorial, Sunday herald, 16 October 2005. 229 U.N. Blasts Practice of Outsourcing Torture, by Thalif Deen, Inter Press Service News Agency, 9 November 2005. 230 Destination Cairo: human rights fears over CIA flights, by Ian Cobain, Stephen Grey and Richard Norton-Taylor, Guardian, 12 September 2005. 3358392035 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 141
BIRW has sent a copy of this submission to him, the UN Committee against Torture, and the Special Rapporteur on torture. The police in Scotland, Spain, Italy, Germany and Sweden are all said to be carrying out criminal investigations in relation to extraordinary renditions involving their countries. 11. The practice of extraordinary rendition violates Article 3 of the UN Convention against Torture Article which says: 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. One commentator has explained the USA’s interpretation of Article 3 as follows: “The United States Senate, however, ratified the treaty with certain reservations, declarations, and understandings, which may alter the nature of their treaty obligation with regard to UNCAT Article 3. Congressional Record S17486-01 II.3 reads ‘the United States understands the phrase, “where there are substantial grounds for believing that he would be in danger of being subjected to torture,”’ as used in Article 3 of the Convention, to mean ‘if it is more likely than not that he would be tortured.’ This ‘understanding’ with regard to U.S. ratification perhaps increases the diYculty of proving a treaty violation.”231 In BIRW’s opinion, the USA’s “understanding” is of no validity, so far as extraordinary rendition is concerned, for three reasons. First, the USA is not returning or extraditing victims to other states, it is abducting them and taking there involuntarily. Secondly, the USA’s expectations concerning whether or not these victims will be tortured are irrelevant, since the USA is taking these victims to these countries in order that they can be subjected to torture, which is clearly illegal and a violation of Article 3. Thirdly, the USA is reportedly directing the questions to be put to the victims and is sanctioning and condoning the torture. 12. If the UK is aiding and abetting the USA in the practice of extraordinary rendition in any way whatsoever, it is also acting in violation of Article 3. Whether victims are aboard aeroplanes using UK airspace, airports and airbases is irrelevant, if the aeroplanes themselves are intended for use to transport victims to be tortured. Equally, whether those subjected to extraordinary rendition are in fact involved in terrorism or are innocent of any crime is of no account. The prohibition against torture is absolute, non- derogable, jus cogens and obligatio erga omnes. 13. Even if the prohibition against torture were not absolute, no civilised democracy could countenance it. First, it is a complete fallacy to think that the use of torture can ever be justified in the legitimate attempt to counter or prevent terrorism. Torture produces just one product: what the torturer wants and expects to hear. Evidence obtained under torture is inherently unreliable, and the subjection of victims to extraordinary rendition on the basis of “intelligence” obtained by torture is as abhorrent as extraordinary rendition itself. Secondly, the short- and long-term eVects of torture brutalise not only its victims, but the perpetrators and by extension the society that permits it. Thirdly, higher standards can and must be expected from governments than those that can be hoped for from terrorists. Once a state employs torture against those it suspects of involvement in terrorism, the terrorists have won, because the state has abandoned the rule of law and is prepared to use violence to obtain its ends; in other words, the state had brought about the very aim the terrorists have set out to achieve, the terrorising of the population and the collapse of democracy and accountability. 14. British Irish rights watch asks the Joint Committee on Human Rights to do everything in its power to dissuade the United Kingdom government from playing any part whatsoever in the illegal practice of extraordinary rendition. November 2005
21. Submission from the Committee on the Administration of Justice (CAJ)
Introduction The Committee on the Administration of Justice (CAJ) is an independent cross-community non- governmental organisation aYliated to the International Federation of Human Rights (FIDH). CAJ monitors the human rights situation in Northern Ireland and works to ensure the highest standards in the administration of justice. The organisation was awarded the Council of Europe Human Rights Prize in recognition of its work to place human rights and equality provisions at the heart of the peace agreement secured in 1998.
231 Extraordinary rendition, Wikipedia free encyclopedia website: http://en.wikipedia.org/wiki/Extraordinary rendtion 3358392036 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 142 Joint Committee on Human Rights: Evidence
CAJ has since its establishment in 1981 made regular submissions to the various human rights organs of the United Nations and to other international and regional human rights mechanisms. We have made submissions to the Committee on the Elimination of Discrimination Against Women (CEDAW), the Committee on the Elimination of Racial Discrimination (CERD), the Committee on the Rights of the Child (CRC) and a variety of other mechanisms—for example, the UN Special Rapporteur on Extra-judicial, Summary and Arbitrary Executions—and we successfully represented clients taking article 2 cases before the European Court of Human Rights. CAJ has found that resort to the various UN human rights mechanisms has been very positive in ensuring greater domestic protection of human rights. We warmly welcome the eVorts made by the Joint Committee on Human Rights to further monitor the UK’s compliance with the various international instruments it has ratified. Of direct relevance to the work of the UN Committee Against Torture (UNCAT) is CAJ’s earlier work with the European Committee on the Prevention on Torture, and submissions made in response to the UK’s first (1991), second (1995), third (1998) and fourth (2004) periodic reports to UNCAT. CAJ has a very positive experience of the work of UNCAT. In particular, it is our belief that after interventions made to UNCAT in 1991, the Committee made a number of extremely important findings with regard to Northern Ireland. We are on record as reporting that, following the release of these findings, there was a marked decrease in the numbers of complaints of ill-treatment made by detainees. We have also attended where possible, the actual examination of the government by the Committee in Geneva and brought our concerns directly to the attention of Committee members. We were able to attend the most recent examination in November 2004, and found that the interventions made by us and many other NGOs were extremely valuable in enabling a thorough and informed examination of the government delegation, which in turn contributed directly to some of the concluding observations that the Committee made.
Emergency Legislation It is out-with CAJ’s remit to comment on jurisdictions other than Northern Ireland, and for that reason we focus this submission on those elements of the Concluding Observations that have particular relevance to Northern Ireland. At the same we should note that CAJ believes that many of the lessons of Northern Ireland could usefully be applied to other jurisdictions. Northern Ireland has a long history of the use of emergency laws and the practices and powers they contain. Our experience has been that measures to “combat terrorism” fed and fuelled rather than resolved the conflict. The wide discretion placed in the hands of the authorities, the creation of “suspect communities” and the abuse of basic human rights facilitated by emergency provisions did little to build confidence that Northern Ireland was a more secure and safe society. Instead, apart from being wrong in themselves, the human rights abuses that were routinised by the perpetuation of emergency legislation contributed to an ever greater sense of injustice, and a radicalisation of communities. The learning from Northern Ireland should be that this type of legislation did not work, and we are therefore surprised and disappointed that the UK government in this new international “war on terror” appears to be replicating many of the errors of the past. Given the concern expressed by UNCAT about: (i) the incomplete factual and legal grounds advanced to them justifying derogations from the government’s international human rights obligations (4(c)); (ii) the resort to potentially indefinite detention under the Anti-terrorism, Crime and Security Act 2001 (4(e) and 5(h)); (iii) the uncertainty surrounding the reliance on evidence which may have been obtained by torture (5(d); and (iv) the need to strengthen independent periodic assessment of the ongoing justification for emergency provisions; It is surprising and disappointing that rather than address these points, the government instead appears to be moving towards even more draconian emergency legislation, which would directly contravene its international human rights obligations. This has not been accompanied, as far as we are aware, by any review mechanism or independent assessment of such powers as UNCAT recommended. It would appear, therefore, that rather than address UNCAT’S concerns, the government is in fact ignoring them and proceeding with even more severe legislation. The UK government is not alone among UN member states in having to respond to public concerns about safety; nor is it alone in being required to ensure the security of its inhabitants. UNCAT is aware that states have a “duty of care” responsibility and that in upholding the right to life of their peoples, states must take measures against indiscriminate attack and political violence. The UN is however very clear that “security” and “human rights” are not contradictory goals, but complementary ones, inasmuch as security can only be eVectively protected by ensuring the rule of law and upholding human rights. 3358392036 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 143
The Committee might want to ask what review, if any, has been undertaken by government in response to the recommendations from UNCAT, and what the review concluded regarding the extent to which the UK is meeting, or failing to meet, its international obligations in respect of existing and proposed new anti- terrorism measures. UNCAT commented in particular on the lack of precise information on the necessity for continued emergency provisions in Northern Ireland via Part VII of the Terrorism Act. CAJ welcomed the statement in August 2005 by the Secretary of State for Northern Ireland, Peter Hain, announcing the “repeal of counter- terrorist legislation particular to Northern Ireland” as part of the “normalisation” process. We were disappointed, however, that there is to be a further delay (possibly as long as two years) and that the timetable for change would be dependent on what government assesses to be an “enabling environment”. As noted above, CAJ has long been of the view that this legislation was wrong and unnecessary and certainly—as recognised by UNCAT—could no longer be justified in the current largely peaceful environment. CAJ is also concerned that government’s various anti-terrorism proposals will be extended, and that Northern Ireland may lose its particularity, but only because the provisions it previously experienced have now been applied in all the various UK jurisdictions. We believe that such a move would eVectively reintroduce through the back door powers and practices that have proved both contentious and unsuccessful to Northern Ireland; that this would be a retrograde step; and that it could prove destabilising to eVorts to build a more secure and peaceful society here. The Committee may want to further examine this issue with the government.
Adequate Investigations
UNCAT expressed concern (4(f)) that investigations carried out by the government into a number of deaths by lethal force, particularly those which occurred before the introduction of the Human Rights Act, had failed to fully meet its international obligations and recommended (5(k)) that the government take all practicable steps to review investigations of deaths by lethal force that have remained unsolved. Any such review should be undertaken in a manner that could command the confidence of the wider community. Regrettably, there is little progress to be reported in this regard. CAJ represented a number of the families in the European Court of Human Rights that led to its finding that the government had violated the right to life of the individuals concerned and that article 2 of the Convention had been breached because of government’s failure to hold an eVective oYcial investigation into the deaths. The families’ attempts to pursue the domestic implementation of this decision have met obstacle after obstacle. The particular anomaly which CAJ and others brought to UNCAT’s attention was the House of Lords decision in McKerr (March 2004) which ruled that only deaths that occurred after the introduction of the Human Rights Act in 2000 were required to be the subject of investigations compliant with Article 2 of the European Convention on Human Rights. The Committee of Ministers of the Council of Europe have been monitoring the implementation of the European Court’s decision and they have also found the government’s response to be lacking in a number of ways. CAJ has made detailed submissions to the Committee of Ministers throughout their monitoring process and could make submissions to the JCHR also on these matters if this were thought to be helpful and if requested to do so. However, a number of issues are worth highlighting immediately: (i) The introduction of the Inquiries Act 2005 eVectively closes down public inquiries as we know them by placing inappropriate power in the hands of a minister whose very actions may be under investigation. The Joint Committee has already commented on this piece of legislation, and we echo the concerns they highlighted. We believe that it is highly questionable whether inquiries established under this Act would be compliant with Article 2 of the ECHR, and thus whether the government is meeting its obligations in this regard as UNCAT has recommended. (ii) The European Court in the cases mentioned above was also concerned with the proper scope of inquests and the decision in McKerr has left the eVective investigation of suspicious pre-2000 deaths in limbo in this regard. (iii) The Police Service of Northern Ireland (PSNI) have recently established a Historical Enquiries Team (HET) to investigate unsolved deaths which occurred prior to the Belfast/Good Friday Agreement in 1998. CAJ has raised a number of concerns about this process, for example, what lines of accountability and responsibility are in place from the Historical Enquiries Team to the Chief Constable; whether the lines of authority are direct or are mediated through PSNI oYcers who served previously in the Royal Ulster Constabulary and who might be expected to retain some loyalty to that institution and to former colleagues; what proportion of oYcers are being recruited or seconded from outside the jurisdiction; how public and transparent the whole process will be; and indeed whether the whole process would withstand a test of compliance with Article 2. 3358392036 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 144 Joint Committee on Human Rights: Evidence
Overall, we believe the government is failing in its duty to adequately investigate deaths by lethal force, and is neglecting its international human rights obligations in this respect. Government seems to be avoiding its responsibilities by relying on the legal uncertainties that have arisen in the courts about the potentially conflicting domestic and international human rights standards to be applied. We suggest that the Committee may want to ask the government how it intends to ensure that article 2 compliant investigations are carried out into deaths by lethal force, especially those which occurred before the coming into force of the Human Rights Act.
Plastic Baton Rounds/Plastic Bullets UNCAT has previously taken an interest in the use of plastic bullets or plastic baton rounds (PBRs) in Northern Ireland, and indeed called for their withdrawal in their Concluding Observations in 1998. This recommendation was not implemented. Further, the Patten Commission on policing set up in the wake of the Belfast/Good Friday Agreement expressed serious concern about reliance on this weapon. “In view of the fatalities and serious injuries resulting from PBRs, and the controversy caused by their extensive use, we are surprised and concerned that the government, the Police Authority and the RUC have collectively failed to invest more time and money in a search for an acceptable alternative. We were able to discover very little research work being done in the UK (except in the development of more accurate PBRs)…” (para 9.14, September 1999). Patten recommended a research programme to find a less lethal alternative to plastic bullets; the Working Group subsequently created by government instead seemed to concentrate its attention on replacements for plastic bullets. The most recent “replacement” to be introduced is the Attenuated Energy Projectile (AEP) and is in reality a plastic bullet in another guise. Indeed, one wonders if the Working Group did anything other than research what Patten decried as merely “the development of a more accurate” plastic bullet/baton round. Patten had alluded to the controversy surrounding the use of plastic bullets—hardly surprising considering the fact that 17 people, a majority under 18, were killed with them, and the contentious situations in which they were deployed. It was all the more disappointing therefore that the decision to approve the new Attenuated Energy Projectiles in 2005 was taken at a private meeting of the NI Policing Board, and that the Board failed (as had the Working Group) to invite or seriously consider independent medical and human rights expertise before making its decision. In its Concluding Observations last year, UNCAT welcomed (3(a)) the fact that no baton rounds had been fired by either the police or army in Northern Ireland since September 2002. Unfortunately, however, the moratorium came to an abrupt end in the summer of this year, 2005. 22 were fired in July and four in August, but on 10 September, upwards of 450 appear to have been discharged. The media accounts of the exact figure are contradictory, and CAJ is currently pursuing the exact statistics with the Chief Constable. Media reports also highlight the fact that a number of injuries were caused by the firing of AEPs, including children. While acknowledging the serious situation faced by the security forces on the latter occasion, CAJ continues to oppose the use of plastic bullets. Moreover, we believe questions need to be asked as to whether the number of AEPs fired was proportionate. Each weapon is potentially lethal, so the discharge of several hundred bullets in one night warrants very close scrutiny. While each police discharge of an AEP is subject to investigation by the Police Ombudsman for Northern Ireland, the sheer numbers and intensity of firing will presumably make it diYcult to ascertain whether the guidelines for their use were followed in each instance. Moreover, initial reports suggest that the army may have fired more baton rounds than the police, but military discharges of the weapon are not routinely subject to the same standard of scrutiny. There is no oversight provided by a Policing Board, or a Police Ombudsman, and there is a certain level of legal ambiguity surrounding army actions when in fact they are operating in a police function and under PSNI authority. The Committee may want to ask questions of the authorities regarding all of these matters. In particular, the authorities should be asked what weight, if any, was given by government, in the deliberations of the Steering Group, or by the Policing Board to UNCAT’s recommendations that plastic bullets be abolished as a form of riot control. The Committee should explore why this weapon is still being so used.
Powers of the NIHRC UNCAT recommended (5(m)) that the NIHRC be designated as one of the monitoring bodies under the Optional Protocol. This has yet to happen, which is particularly regrettable given that it is a relatively simple procedure for the government to initiate. Government in fact committed in December 2004 to extend the powers of the NIHRC in this regard, but any subsequent inquiries as to timetable, or the exact powers being proposed, have received no answer. Indeed, this very proposal was one of many made in a review of NIHRC powers (carried out in response to a parliamentary request) which was completed as long ago as 2001. Government subsequently chose to issue a consultation document in May 2002, requesting responses by August 2002. The consultation process was not actively pursued and indeed the various recommendations made by the NIHRC remained “shelved” 3358392036 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 145
for the next two years. Government ignored calls in 2004 and 2005 from CAJ and others to use the opportunity of advertising for, or naming, new members of the Commission to publish its response to the recommendations and clarify the NIHRC powers. The December 2004 announcement regarding the designation of NIHRC as a monitoring body was not couched in the context of a broader response to the NIHRC’s recommendations, and appears rather to have been an isolated response. The Committee should urge the government to issue a comprehensive response to the 2001 NIHRC’s recommendations on powers; specifically, government should indicate the exact legislative proposals and the timetable being followed regarding UNCAT’s recommendation on monitoring.
Detention Conditions UNCAT expressed concern (4(g)) about reports of unsatisfactory conditions in some detention facilities, and mentioned particularly the unacceptable conditions for female detainees operating in Hydebank Wood. We would refer the Committee to the excellent report produced by the NI Human Rights Commission on the conditions of detention for women prisoners that was presented to UNCAT last year. Since then, the Criminal Justice Inspection for Northern Ireland (CJINI) has also investigated prison conditions and likewise found them to be seriously inadequate. The Committee may want to explore the public ambiguity that surrounds the CJINI report. The press release issued by the CJINI noted that the Prison Service had accepted “all” of the Inspection’s recommendations, whereas the press release from the Prison Service noted that they had accepted “most” of the recommendations. CAJ is not clear if the confusion is merely one of terminology, or substantive. We were however somewhat worried to hear the head of the Prison Service in a media interview responding to concerns by asking the public whether they really wanted their money spent on building a new prison for women. The clear implication of the interview was that this was a large but possibly unnecessary, and very likely unpopular, use of public monies. The Committee should ask the government what measures are being put in place to comply with the recommendations of UNCAT, the NIHRC and CJINI in relation to detention conditions for female prisoners in Northern Ireland.
Conclusions While there are many aspects of the government’s obligations under the UN Convention Against Torture on which CAJ could have commented, we have sought in this submission to limit ourselves to commenting on the particular Concluding Observations of relevance to Northern Ireland. We also note that the Committee itself is examining only the steps taken by government in response to these recommendations. Given that the government is required to report to UNCAT on the progress made in the implementation of a number of specific recommendations in November of this year, we believe this inquiry by the Committee is particularly timely, and will be an extremely valuable contribution to that process. September 2005
22. Submission by Human Rights Watch
Introduction 1. As an international human rights monitoring and advocacy organisation, Human Rights Watch (HRW) welcomes this inquiry by the JCHR into the UK’s compliance with the United Nations Convention against Torture (UNCAT). This submission focuses on the use of diplomatic assurances—the practice of a government securing formal guarantees from another government that a person will not be subjected to torture or ill-treatment upon return, so as to eVect an expulsion, extradition, deportation, return, or other form of transfer of a terrorism suspect or other foreign national to a country with a well-documented record of torture. The UK government has recently agreed such assurances with Jordan and is currently negotiating with other countries, including Algeria, Egypt and Morocco. 2. HRW is particularly well-placed to comment on the growing practice of governments’ reliance on diplomatic assurances following in-depth research into the issue over the past several years, as documented in two recent reports: Empty Promises (April 2004) and Still at Risk (May 2005).204 Whilst HRW recognizes that governments have a duty to undertake measures to combat terrorism, we are deeply concerned that governments that rely on diplomatic assurances use them as a device to circumvent their absolute obligation not to transfer any person to a place where he or she would be at risk of torture or ill-treatment. This non- refoulement principle, together with the absolute prohibition against torture, is a cornerstone of human
232 “Still at Risk, Diplomatic Assurances No Safeguard Against Torture,” a HRW report published on 15 April 2005 is available at: http://hrw.org/reports/2005/eca0405/ “‘Empty Promises:’” Diplomatic Assurances No Safeguard against Torture,” a HRW report published on 15 April 2004 is available at: http://hrw.org/doc/?t%europe&c%uk&document limit%20,20 3358392037 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 146 Joint Committee on Human Rights: Evidence
rights protection which states cannot derogate from or “opt out” of irrespective of the crime or suspected activity of the individual concerned. Every international treaty that addresses the issue, including UNCAT, is unambiguous on this point. 3. Significantly, diplomatic assurances are only sought from governments with well-known records of torture and ill-treatment. This in itself has deeply disturbing implications. When one state requests that another make an exception to its general practice of employing torture, it gives tacit sanction to that country’s policies and practices of torture. Seeking assurances against torture in such situations could also be considered to constitute a general abdication by the sending state of its obligations as a member of the international community not to facilitate violations of fundamental human rights, such as the absolute ban on torture. 4. This submission argues that diplomatic assurances in relation to torture and ill-treatment are inherently unreliable and therefore do not provide an eVective safeguard against such treatment. Indeed, evidence is mounting that people who are returned to states that torture are in fact tortured, regardless of diplomatic assurances. The use of such assurances violates the absolute prohibition in international law against torture and ill-treatment, including the non-refoulement obligation. It undermines the global ban on torture and ill-treatment, and should stop.
International Law 5. The United Nations Security Council has aYrmed that all measures to combat terrorism must conform with member states’ international human rights obligations.233 The prohibition against torture and ill- treatment, including the obligation of non-refoulement, are enshrined in the UNCAT. Article 3(1) provides that “no state shall expel, return (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture”. This non-derogable obligation is also to be found in article 7 of the International Covenant on Civil and Political Rights and article 3 of the European Convention on Human Rights. It is also a core principle of international refugee law.234 6. There is a growing international consensus amongst human rights experts that diplomatic assurances are undermining the absolute prohibition on torture, including the principle of non-refoulement. The UN Special Rapporteur on Torture, the UN Independent Expert on human rights and counter-terrorism, the Council of Europe Commissioner for Human Rights, and the European Committee for the Prevention of Torture have all warned that the use of assurances is threatening the global ban on torture and ill-treatment. 7. In his report to the UN General Assembly in September 2004, the outgoing UN Special Rapporteur on Torture, Theo van Boven, expressed concern that reliance on assurances is a “practice that is increasingly undermining the principle of refoulement” and questioned whether the practice “is not becoming a politically inspired substitute for the principle of non-refoulement which . . . is absolute and nonderogable.”235 The newly-appointed Special Rapporteur, Manfred Nowak, echoed these concerns in one of his first public statements on the issue adding that “. . . there’s then no way or very, very little possibility of the sending country to actually—as soon as the person is in the other country—to make sure that this type of diplomatic assurances are complied with”.236 8. The (former) UN Independent Expert on human rights and counter-terrorism, Robert K Goldman, has also described as “troubling” states’ increased reliance on diplomatic assurances. In a February 2005 report, he noted that “the mere fact that such assurances are sought is arguably a tacit admission by the sending State that the transferred person is indeed at risk of being tortured or ill-treated.”237 In a similar vein, the Council of Europe Commissioner for Human Rights Alvaro Gil-Robles has stated that “the weakness inherent in the practice of diplomatic assurances lies in the fact that if there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment”.238 The most recent resolution of the U.N. Commission on Human Rights also takes a firm stand against transferring persons to places where they are at risk of torture. It urges states not to expel, return or extradite “or in any other way transfer” a person to a place where he or she would be at risk of torture.239
233 Security Council Resolution 1456 (2003): “States must ensure that any measure taken to combat terrorism complies with all their obligations under international law, and should adopt such measures in accordance with international law, in particular human rights, refugee and humanitarian law,” para 6 [online] http://ods-dds-ny.un.org/doc/UNDOC/GEN/N03/216/05/ PDF/N0321605.pdf?Open Element. 234 Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. 235 Report of the Special Rapporteur on Torture Theo van Boven to the General Assembly, 23 August 2004, paras 30–42. 236 BBC Radio 4, Today Programme, [What would it mean for terrorist suspects if the government did get its Prevention of Terrorism Bill through Parliament?], 4 March 2005 at 8:30 [online]. 237 U.N. Commission on Human Rights, Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, E/CN.4/2005/103, 7 February 2005, para 56, p 19 [online] http:// www.ohchr.org/english/bodies/chr/docs/61chr/E.CN.4.2005.103.pdf. 238 Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Sweden, 21–23 April 2004. Council of Europe, CommDH(2004)13, 8 July 2004 at http://www.coe.int/T/E/Commissioner H.R/Communication Unit/Documents/ pdf.CommDH(2004)13 E.pdf. 239 U.N. Commission on Human Rights Resolution 2005/39, “Torture and other cruel, inhuman or degrading treatment or punishment,” para 5 [online] http://ap.ohchr.org/documents/sdpage e.aspx?b%1&se%59&t%11. 3358392037 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 147
Examples of Current Practice
9. The practice of relying on diplomatic assurances is not new. It is a global phenomenon with sending countries in North America and Europe leading the charge. The two reports published by HRW, “Empty Promises” and “Still at Risk” detail cases involving the United States, Canada, Sweden, Germany, Austria and the UK. In two prominent cases (see below) transfers based on assurances against torture resulted in credible allegations that the persons were tortured on return. In a number of cases, courts have blocked transfers based on such cases.240 In several other cases (from Turkey to Uzbekistan and from Georgia to Russia) the inability to gain access to detainees upon return has made it impossible to determine how they have been treated. 10. In 2001, two Egyptian nationals suspected of terrorist activities—Ahmed Agiza and Mohammed al- Zari—were returned to Egypt by Sweden following assurances from Cairo that they would not be tortured and would be given fair trials. Upon return they were held for five weeks in incommunicado detention. Despite monthly visits thereafter by Swedish diplomats—none of them in private—both men credibly alleged to their lawyers and family members, and indeed to Swedish diplomats, that they had been tortured and ill-treated. Al-Zari was released after nearly two years in 2003 without charge or trial. Agiza remains in prison to date after a retrial in 2004 before a military tribunal where fair trial standards are not respected.241 In May 2005, the UN Committee against Torture found the Swedish government to have breached its obligations under article 3 of UNCAT when it relied on diplomatic assurances from the Egyptian government in Ahmed Agiza’s case.242 The Committee noted that Egypt had a well-documented history of torture abuses, especially when dealing with terrorism suspects, and concluded that assurances could not protect Agiza from the risk of torture he faced upon return. The Swedish and Egyptian governments continue to deny any wrongdoing in the case. 11. Another well-publicized case is that of Maher Arar, a dual Canadian-Syrian national, who was apprehended by the US authorities whilst in transit from Tunisia through New York to Canada where he had lived for many years.243 He was flown to Jordan and handed over to the Syrian authorities at the border despite his repeated statements to US oYcials that he would be tortured in Syria. The US government has claimed that they had obtained prior assurances from the Syrian government that Arar would not be subjected to torture on return. Arar was released 10 months later without charge and has credibly alleged that he was repeatedly tortured. The US government has not explained why it sent Arar to Syria rather than Canada or why it believed Syrian assurances to be credible in light of the government’s well-documented record of torture. The case is currently the subject of a Commission of Inquiry in Canada.244
Position in the UK
12. The 1996 ruling in the case of Chahal v United Kingdom by the European Court of Human Rights was a significant turning point.245 The court ruled that the return to India of a Sikh activist, suspected of involvement in terrorism, would violate the UK’s obligations under article 3 of the ECHR despite diplomatic assurances proVered by the Indian government. It established that diplomatic assurances are an inadequate guarantee where torture is “endemic” or a “recalcitrant and enduring problem” in the receiving country. 13. Following this decision, in 1999, the UK government started the process of trying to return four alleged Islamic militants to Egypt by seeking assurances against torture, despite reservations from lawyers at the Home OYce and Foreign OYce as to the eVectiveness of such measures as a safeguard against ill- treatment. The High Court judgment in the case in July 2004 includes details of the negotiations with the Egyptian authorities, including the fact that the Egyptians refused to agree to a number of assurances originally proposed by the UK.246 The Prime Minister personally intervened on a number occasions in the midst of the negotiations. On one occasion his Private Secretary wrote: “He [the Prime Minister] believes that we should use whatever assurances the Egyptians are willing to oVer, to build a case to initiate the deportation procedure and to take our chance in the courts”.247
240 This includes cases in the UK. For example, the extradition of Akhmed Zakaev to Russia was refused by Bow Street Magistrates’ Court in November 2003, see “Empty Promises”, pp. 29–30; Singh and Singh v Home Secretary July 2000 “assurances that the UK government had obtained did not, in light of other evidence, provide a suYcient degree of reassurance about the safety of the deportee on his return.” (Privy Counsellor Review Committee, “Anti-Terrorism, Crime and Security Act 2001 Review,” para 256 and fn.136). 241 See, “Empty Promises”, pp 33–36 and “Still at Risk”, pp 57–64. 242 Agiza v Sweden CAT/C/34/D/233/2003, 20 May 2005. 243 See, “Empty Promises”, pp 16–17 and “Still at Risk”, pp 33–36. 244 Commission of Inquiry into the Actions of Canadian OYcials in Relation to Maher Arar [online] http:// www.ararcommission.ca. 245 Chahal v United Kingdom, 70/1995/576/662, 15 November 1996. 246 Hani El Sayed Sabaei Youssef and The Home OYce, Case No: HQ03X03052, 2004 EWHC 1884 (QB), 30 July 2004 [online] http://www.courtservice.gov.uk/judmentfiles/j2758/youssef-v-home oYce.htm. 247 Ibid., para 38. 3358392037 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 148 Joint Committee on Human Rights: Evidence
14. More recently, the issue of diplomatic assurances has arisen in the context of the government’s attempts to develop alternatives to the indefinite detention of foreign nationals suspected of terrorism- related activity. This followed the House of Lords ruling in December 2004 that the indefinite detention of the so-called Belmarsh detainees under the Anti-Terrorism Crime and Security Act 2001 was incompatible with the UK’s Human Rights Act which incorporates the European Convention on Human Rights.248 A “twin track” set of alternatives has since been pursued: “control orders” limiting the movement and activities of a person under the 2005 Prevention of Terrorism Act and the use of diplomatic assurances to deport to home countries.
15. Those held in indefinite detention were made subject to control orders on their release in March 2005. Several of them have since been re-detained along with others recently cleared in a trial alleging involvement in a ricin plot.249 They now face deportation proceedings on national security grounds. In the past the UK government has acknowledged that the Belmarsh detainees would be at risk of torture if they were to be returned to their countries of origin. It will now be incumbent on British courts to rule in these cases on whether the memoranda of understanding from governments of countries where torture occurs is an adequate assurance. 16. The UK signed a Memorandum of Understanding (MOU) with Jordan on 10 August 2005.250 The undertaking by the Jordanian government is that: “If arrested, detained or imprisoned following his return, a returned person will be aVorded adequate accommodation, nourishment, and medical treatment and will be treated in a humane and proper manner, in accordance with internationally accepted standards.” It also contains provisions relating to judicial supervision and visits by an “independent body nominated jointly by the UK and Jordanian authorities.” There is no reference to the word torture. The plan is to seek similar assurances from a number of other governments, including Algeria, Egypt and Morocco. 17. According to the most recent US Department of State 2004 Country Reports on Human Rights Practices (issued February 2005), there are persistent allegations of torture in all these countries.251 The report notes that in Jordan members of the security forces committed a number of serious human rights abuses whilst government oYcials denied such allegations of torture and abuse. With respect to Egypt, the report found that “there were numerous, credible reports that security forces tortured and mistreated detainees.” Meanwhile, in Algeria, it found the incidence and severity of torture with impunity to be serious problems. It noted in particular that torture occurs in military prisons, most frequently against those arrested on “security grounds”.
18. Despite the statement made by the Secretary of State for the Home Department, Mr Clarke, to a recent hearing of the Parliamentary Home AVairs Committee that intergovernmental agreements should be taken seriously it is nevertheless the fact that an MOU is no more that a set of “understandings” agreed in principle between two governments.252 In this context it should be noted that diplomatic assurances are distinguishable from assurances against the death penalty which acknowledge the diVerent legal approaches of two states whereas assurances against torture acknowledge unlawful activity.
19. In November 2004 the UN Committee against Torture expressed its concern during the fourth periodic review of the UK at “the State party’s reported use of diplomatic assurances in the ‘refoulement’ context in circumstances where its minimum standards for such assurances, including eVective post-return monitoring arrangements and appropriate due process guarantees followed, are not wholly clear and thus cannot be assessed for compatibility with article 3 of the Convention.”253 The UK has been requested to provide details of removal cases subject to diplomatic assurances since September 2001, the minimum contents for such assurances and the subsequent monitoring it has undertaken in such cases.
20. More recently, in August, the UN Special Rapporteur on Torture, expressed his “fear that the plan of the United Kingdom to request diplomatic assurances for the purpose of expelling persons in spite of a risk of torture reflects a tendency in Europe to circumvent the international obligation not to deport anybody if there is a serious risk that he or she might be subjected to torture.”254
248 A and Others v. Secretary of State for the Home Department [2004] UKHL 56. 249 The Guardian, “10 detained over ‘threat’ to national security”, 11 August 2005 [online] http://politics.guardian.co.uk/ terrorism/story/0,15935,1546882,00.html; and BBC News UK “Algerians detainees ‘face torture’, 16 September 2005 [online] http://news.bbc.co.uk/1/hi/uk/4251442.stm. 250 See, Human Rights Watch Press Release, “UK./Jordan: Torture Risk Makes Deportations Illegal”, 16 August 2005 [online] http://www.hrw.org/english/docs/2005/08/jordan11628/htm. 251 http://www.state.gov/g/drl/rls/hrrpt/2004 252 See Uncorrected transcript of Oral Evidence (to be published as HC 462-i), House of Commons, Minutes of Evidence taken before Home AVairs Committee, 13 September 2005 at Q.35 [online] http://www.publications.parliament.uk/pa/cm200506/ cmselect/cmhall/uc462-i/uc462 253 See, Committee against Torture, “Conclusions and Recommendations: Fourth Periodic Report of the United Kingdom of Great Britain and Northern Ireland,” CAT/C/CR/33/3, 10 December 2004, section 4(d) [online] http://www.unhchr.ch/tbs/ doc.nsf/(Symbol)/CAT.C.CR.33.3En?OpenDocument 254 United Nations Press Release, “‘Diplomatic Assurances’ Not an Adequate Safeguard for Deportees, UN Special Rapporteur against Torture Warns,” 23 August 2005 [online] http://www.unhchr.ch/huricane/huricane.nsf/view01/ 9A54333D23E8CB81C1257065007323C7?. 3358392037 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 149
Ineffective Safeguard Against Torture 21. At the core of the argument against diplomatic assurances lies the fact the perceived need for such guarantees in itself is an acknowledgment that a risk of torture exists in the receiving country.255 There are also a number of other reasons why diplomatic assurances cannot be relied upon as a safeguard against torture: 22. The assurances are untrustworthy. They are based on trust that the receiving country will uphold its word when the state’s record of torture demonstrates that there is no basis for such trust. Governments that torture almost always deny such abusive practices. It defies common sense to presume that a government that routinely flouts its binding obligations under international law and misrepresents the facts in this context can be trusted to respect a promise in an isolated case. 23. The limits of post-return monitoring means it is ineVective. There are inherent diYculties in devising credible and functioning post-return monitoring and review systems. The European Committee for the Prevention of Torture recently indicated that it has “yet to see convincing proposals for an eVective and workable [post-return monitoring] mechanism”.256 Torture and ill-treatment are practiced in secret and occur within a highly sophisticated system specifically designed to keep abuses from being detected. As a result, even if a sending government sought to engage in serious post-return monitoring, it would come up against the reality that those who use torture are adept at hiding it. Moreover, those who suVer torture are often reluctant to speak about it due to fear of retaliation. Finally, post-return monitoring schemes often lack basic safeguards, including private meetings with detainees without advance notice and medical examinations by independent doctors. 24. Diplomatic assurances are legally unenforceable. They have no legal eVect and the person returned has no eVective recourse if the assurances are breached. There is in fact no mechanism inherent to the assurances themselves that holds either the sending or receiving government accountable. For instance, there are no sanctions for breach and therefore states that violate the assurances have nothing to lose. This underlines the fact that attempting to secure protection of a fundamental right via diplomatic channels has inherent limitations due to the very nature of diplomacy. As a result, serious human rights issues—even those involving the absolute prohibition against torture—are often subordinated to diplomatic concerns. 25. There is no incentive on either country to investigate or highlight allegations of torture. In doing so the receiving country would acknowledge that it could be implicated in torture or ill-treatment. For the sending country, meanwhile, finding that torture or ill-treatment has occurred would amount to an admission that it has violated its own non-refoulement obligation. As a result, both the sending and receiving governments share an interest in creating the impression that the assurances are meaningful rather than verifying that they actually are. 26. Mere accession to UN human rights instruments including the Convention against Torture does not guarantee compliance with obligations. Indeed, all the texts of diplomatic assurances collected by HRW reiterate the receiving country’s existing treaty obligations as the basis for illustrating that they can be trusted not to torture a specific individual. Such promises from countries that already routinely flout and deny violating these obligations are meaningless and cannot be relied upon in good faith. As the U.N. Special Rapporteur on Torture noted in a recent comment on the assurances provided by Jordan to the UK, “ why should [Jordan] suddenly stop torturing? They are already violating a legally binding treaty, so why should they not violate a nonbinding diplomatic agreement?”257
Conclusion and Recommendations There is increasing evidence showing that any assurances from a government that routinely violates its international obligations pertaining to torture cannot be considered reliable. The growing trend of governments relying on diplomatic assurances from such countries seriously undermines the absolute prohibition against torture including the principle of non-refoulement. It also threatens to erode the decades- long work of governments—in close alliance with civil society—to eradicate torture. In accordance with the recommendations in its two reports on diplomatic assurances, and the U.N. Special Rapporteur on Torture’s call on governments to “refrain from seeking diplomatic assurances and the conclusion of memoranda of understanding in order to circumvent their international obligation not to deport anybody if there is a serious risk of torture or ill-treatment,”258 Human Rights Watch urges the Joint Committee on Human Rights to:
255 As the UN Special Rapporteur on Torture has stated: “The fact that such assurances are sought shows in itself that the sending country perceives a serious risk of the deportee being subjected to torture or ill-treatment upon arrival in the receiving country. Diplomatic assurances are not an appropriate tool to eradicate this risk.” (Ibid). 256 15th General Report on the CPT’s activities covering the period 1 August 2004 to 31 July 2005, 22 September 2005 [online] http://www.cpt.coe.int/en/annual/rep-15.htm . 257 Christian Science Monitor, 13 September 2005 [online] http://www.csmonitor.com/2005/0913/p01s02-woeu.html 258 United Nations Press Release, “‘Diplomatic Assurances’ Not an Adequate Safeguard for Deportees, UN Special Rapporteur against Torture Warns,” 23 August 2005 [online] http://www.unhchr.ch/huricane/huricane.nsf/view01/ 9A54333D23E8CB81C1257065007323C7?. 3358392037 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 150 Joint Committee on Human Rights: Evidence
— ReaYrm the absolute nature of the obligation not to expel, return, extradite, render, or otherwise transfer any person to a country where there are substantial grounds for believing that he or she would be at risk of torture or ill-treatment. — Declare that diplomatic assurances in relation to torture or ill-treatment are inherently unreliable and do not provide an eVective safeguard against such treatment, and make clear that reliance upon diplomatic assurances is unacceptable in situations where there are substantial grounds for believing that a person would be at risk of torture or ill-treatment upon return, including but not limited to cases in which any of the following circumstances prevail in the receiving country: — there are substantial grounds for believing that torture and ill-treatment in the receiving country are systematic, widespread, endemic, or recalcitrant or persistent problems; — governmental authorities do not have eVective control over the forces in the country that perpetrate torture and prohibited ill-treatment; — the government consistently targets members of a particular racial, ethnic, religious, political or other identifiable group, including terrorism suspects, for torture or ill-treatment and the person subject to transfer is associated with that group; — there is a risk of torture or ill-treatment upon return directly related to a person’s particular circumstances; and — there is any indication that the receiving government would subsequently transfer the individual to a third state where he or she would be at risk of torture or ill-treatment. — Emphasise to the UK government that any person subject to transfer has the right, prior to removal, to challenge its legality before an independent tribunal. Any legal review must include an examination of all relevant information, including any diplomatic assurances provided by the receiving state. Persons subject to transfer must have access to an independent lawyer and a right of appeal with suspensive eVect. — Support a requirement that the UK government (along with all governments) provide detailed information in periodic reports to the Committee Against Torture, the Human Rights Committee, and other relevant international and regional monitoring bodies about all cases in which requests for diplomatic assurances against the risk of torture or ill-treatment have been sought or secured in respect of a person subject to transfer, as such action clearly implicates states’ absolute obligation to prohibit and prevent torture and ill-treatment, including the non-refoulement obligation. September 2005
23. Submission from Immigration Law Practitioners’ Organisation (ILPA) 1. The Immigration Law Practitioners’ Association (ILPA) was established in 1984 and is committed, inter alia, to securing a non-racist, non-sexist, just and equitable system of immigration, refugee and nationality law. ILPA has more than 1,200 members including lawyers, advice workers, academics, immigration judges and law students. ILPA is regularly consulted by the Immigration and Nationality Directorate and has made substantial policy representations over the years. ILPA has also been very active in informing parliamentary debate on nationality, immigration and asylum issues and we have, as a concerned NGO, instituted judicial review proceedings. 2. We welcome the decision by the Joint Committee on Human Rights to undertake an inquiry into the compliance of the UK government with its obligations under the United Nations Convention Against Torture (hereafter “the Convention”). 3. The purpose of the Convention is to “make more eVective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world.”259 It does so by enumerating a series of measures that states parties must take in order to give eVect to the prohibition against torture. It is important to emphasize that the prohibition against torture is a peremptory norm of customary international law binding on all states (jus cogens). 4. Article 3 of the Convention states “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”260 The non-refoulement obligation expressed in article 3 is integral to the prohibition against torture. It is a norm of customary international law, and arguably enjoys the same jus cogens status as the overall prohibition. 5. ILPA is extremely alarmed by current eVorts by the government to return persons suspected of involvement of terrorism to countries where they face the risk of torture, based on promises of humane treatment.
259 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Preamble. 260 Convention against Torture, article 3(1). 3358392038 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 151
6. There is a growing international consensus that such promises, generally referred to as “diplomatic assurances,” are an ineVective safeguard against the risk of torture. Successive UN Special Rapporteurs on Torture, the UN Committee against Torture, the UN Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, the Council of Europe Commissioner on Human Rights, and the European Committee for the Prevention of Torture have all expressed concern about their use.261 Leading human rights and anti-torture NGOs have called on states to stop the practice of seeking or relying on such assurances.262
7. Human rights experts are also increasingly concerned that the practice of states seeking such assurances risks creating a loophole in the non-refoulement obligation contained in article 3 of the Convention, thereby eroding the absolute nature of the prohibition against torture. In the words of the UN Special Rapporteur on Torture, the government’s plan to rely on promises against torture from Jordan and other government “reflects a tendency in Europe to circumvent the international obligation not to deport anybody if there is a serious risk that he or she might be subjected to torture.”263
8. EVorts to seek assurances against torture are not new. In 1996, the European Court of Human Rights ruled that the UK government could not rely on assurances against torture to return to India a Sikh activist wanted by the Indian authorities on terrorism charges.264 In 1999, the government tried unsuccessfully to return four alleged Islamic militants to Egypt by seeking assurances against torture, despite reservations expressed by Home OYce and Foreign OYce lawyers about the eVectiveness of such measures as a safeguard against ill-treatment.265
9. The government signalled a renewed interest in diplomatic assurances as a mechanism to return people to torture in a February 2004 Home OYce consultation paper.266 The government’s plans to seek assurances against torture were also referred to by the government in written submissions to the Judicial Committee of the House of Lords during its review of the lawfulness of the indefinite detention of foreign terrorism suspects under the Anti-Terrorism Crime and Security Act 2001 (ATCSA) in October 2004.267
10. The United Nations Committee against Torture, the expert body established to review state compliance with the treaty, signalled unease about the government’s plans to seek diplomatic assurances during the fourth periodic review of the UK in November 2004. The concluding observations on the UK, express concern at: “the State party’s reported use of diplomatic assurances in the ‘refoulement’ context in circumstances where its minimum standards for such assurances, includingeVective post-return monitoring arrangements and appropriate due process guarantees followed, are not wholly clear and thus cannot be assessed for compatibility with article 3 of the Convention.”268 While stopping short of an outright condemnation of the government’s plans, the conclusion reflects the evident concern on the part of the Committee about the proposed agreements.
11. The policy of “deportation with assurances” was formally announced to Parliament on 26 January 2005 by the Home Secretary as part of a “twin track strategy” to replace the indefinite detention after it was ruled unlawful by the Law Lords in December 2004. The government has entered into negotiations with a number of governments in the Middle East, including Jordan, Algeria, Morocco and Egypt, to conclude
261 Statement of the Special Rapporteur on Torture, Manfred Nowak, to the 61st Session of the U.N. Commission on Human Rights, Geneva, 4 April 2005; Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, E/CN.4/2005/103, 7 February 2005; Report of the Special Rapporteur on Torture Theo Van Boven to the General Assembly, 23 August 2004, para 30.; UN Convention against Torture, Decision: Communication No. 233/2003, Agiza v. Sweden, CAT/C/34/D/233/2003, 20 May 2005; Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his Visit to the United Kingdom, 4–12 November 2004, CommDH(2005)6, 8 June 2005; European Committee for the Prevention of Torture, 5th General Report on the CPT’s activities, 22 September 2005. 262 Call for Action against the Use of Diplomatic Assurances in Transfers to Risk of Torture and Ill-Treatment—Joint Statement by Amnesty International, Association for the Prevention of Torture, Human Rights Watch, International Commission of Jurists, International Federation of Action by Christians for the Abolition of Torture, International Federation for Human Rights, International Helsinki Federation for Human Rights, and World Organisation Against Torture, April 2005. 263 United Nations Press Release: “Diplomatic Assurances” Not An Adequate Safeguard For Deportees, UN Special Rapporteur Against Torture Warns, 23 August 2005. Similar concerns have been expressed by Professor Robert Goldman, the UN Independent Expert on human rights and counter-terrorism, and by the European Committee on Prevention of Torture. 264 Chahal v. United Kingdom (1996). 265 The case came to light when one of the men, Hani Youssef, brought a successful civil action against the UK government for wrongful imprisonment pending deportation. Youssef v. The Home OYce, High Court of Justice, Queen’s Bench Division [2004] EWHC 1884 (QB). 266 Home OYce Discussion Paper, Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society, para 38, February 2004. 267 The written submissions stated the government was “exploring the possibility of removing foreign nationals to states where there are fears of Article 3 treatment [sic]…with a view to establishing memoranda of understanding which could provide suYcient safeguards to allow return.” A and Others v. Secretary of State for the Home Department, Case for the Secretary of State [submission to House of Lords], 13 September 2004, p 10, footnote 2. 268 Conclusions and recommendations of the Committee against Torture, United Kingdom of Great Britain and Northern Ireland, Crown Dependencies and Overseas Territories, 25 November 2004, CAT/C/CR/33/3. 3358392038 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 152 Joint Committee on Human Rights: Evidence
“memoranda of understanding” in relation to humane treatment in order to facilitate the return of foreign nationals presently in the UK, who would be at risk of torture upon return. Those liable to deportation under the agreements include men previously certified as terrorism suspects under the ATCSA.269 12. The first memorandum of understanding was agreed with Jordan on 10 August 2005. There is no reference to the word torture in the text. Instead it contains an undertaking by the government of Jordan that: “If arrested, detained or imprisoned following his return, a returned person will be aVorded adequate accommodation, nourishment, and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards.”270 The memorandum also contains provisions relating to judicial supervision and visits by an “independent body nominated jointly by the UK and Jordanian authorities.”271 13. Experience has shown that diplomatic assurances are an ineVective safeguard against torture. The two most prominent cases of transfers based on assurances against torture resulted in credible allegations that the persons were tortured on return. In a number of cases, courts have blocked transfers based on such assurances.272 In several cases where transfers have been made on the basis of assurances (from Turkey to Uzbekistan and from Georgia to Russia), the inability to gain access to detainees upon return has made it impossible to determine whether they were subject to torture upon return.273 14. In one case, the government of Sweden returned two Egyptian nationals—Ahmed Agiza and Mohammed al-Zari—to Egypt in December 2001 on a U.S. government leased aircraft, following assurances from Cairo that they would not be tortured and would be given fair trials. There is credible evidence that both men were tortured, notwithstanding the assurances, and a post-return monitoring mechanism agreed separately between the two governments.274 15. In May 2005, the UN Committee against Torture decided that Sweden had violated its obligations under article 3 of the Convention when it returned Ahmed Agiza to Egypt. In its decision the Committee stated that “[t]he procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suYce to protect against this manifest risk.”275 The factors relevant to risk identified by the Committee included Egypt’s record on torture, and the fact that the government of Sweden regarded Agiza as involved in terrorism, and the fact that he was of interest to the security services in Egyptian and the United States. The Swedish and Egyptian governments continue to deny any wrongdoing in the case. 16. The second case involved Maher Arar, a dual Canadian-Syrian national, whom the US government transferred to Jordan in September 2002 where he was handed over to the Syrian government. The US government has claimed that prior to Arar’s transfer, it obtained assurances from the Syrian government that Arar would not be subjected to torture upon return. Arar has claimed credibly that he was beaten by security oYcers in Jordan and tortured repeatedly, including with cables and electrical cords, during the ten months he spent in Syrian jail.276 The case is the subject of a Commission of Inquiry in Canada.277 17. In addition to the empirical evidence that assurances are an ineVective safeguard against torture, common sense suggests that such promises are unlikely to work. By seeking assurances the UK government is explicitly acknowledging the risk of torture to those persons it wishes to deport. In light of the human rights records of the states with whom the government is seeking agreements, such a conclusion is hardly surprising. There are persistent allegations of torture in Jordan, notably of persons detained on suspicion of terrorism.278 In Algeria there are regular reports that those suspected of involvement in terrorism are subject to torture.279 There are credible allegations of torture in custody in Morocco, particularly directed
269 ILPA members (Birnberg Peirce Solicitors) acting on behalf of a number of Algerian nationals who had been detained indefinitely and subsequently subject to control orders (under the Prevention of Terrorism Act 2005) indicated on 15 September 2005 that the majority have been taken back into custody pending deportation. 270 Memorandum of understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Hashemite Kingdom of Jordan regulating the provision of undertakings in respect of specified persons prior to deportation, 10 August 2005, para 1. 271 Memorandum, paras 2 and 4. 272 Courts in Austria, Canada and the Netherlands, as well as in the UK, have blocked returns despite assurances oVered. In 2003, Bow Street Magistrates Court refused a request from Russian authorities to extradite Akhmed Zakayev, a prominent Chechen, despite assurances of humane treatment oVered to the court by a Russian government minister. See, Human Rights Watch, Still at Risk: Diplomatic Assurances No Safeguard Against Torture, April 2004; and, Human Rights Watch, Empty Promises: Diplomatic Assurances No Safeguard Against Torture, April 2004. 273 Both cases (Mamatkulov and others; Shamayev and others) have been the subject of post transfer appeals to the European Court of Human Rights. In both cases, the Court held that there was insuYcient information about the fate of the returned persons to determine whether the sending state had violated article 3 ECHR. National courts have allowed transfers on the basis of assurances in an Austrian case involving extradition to Russia and a German case involving extradition to Turkey. For more information see, Human Rights Watch, Still at Risk, and Human Rights Watch, Empty Promises. 274 See: Human Rights Watch, Still at Risk, and Human Rights Watch, Empty Promises. 275 UN Convention against Torture, Decision: Communication No. 233/2003, Agiza v. Sweden, CAT/C/34/D/233/2003, 20 May 2005. 276 Human Rights Watch, Still at Risk. 277 http://www.ararcommission.ca/eng/index.htm 278 United States Department of State, Bureau of Democracy, Human Rights and Labor, 2004 Country Reports on Human Rights Practices: Jordan; Amnesty International, Annual Report, 2004; Human Rights Watch, U.K./Jordan: Torture Risk Makes Deportations Illegal, 16 August 2005. 279 Amnesty International, Annual Report 2005: Algeria. 3358392038 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 153
at persons accused of involvement in terrorism.280 The most recent U.S. State Department on human rights in Egypt describes “numerous, credible reports that security forces tortured and mistreated detainees.”281 What is surprising is that the UK government should regard as credible assurances on torture oVered by any government that routinely violates its international obligations in respect of torture. Moreover, even assuming the good intentions of those giving assurances, the reality is that reliable assurances are simply not within the gift of highly placed oYcials where security services and those charged with the day to day care of those detained are able in practice to perpetrate torture with impunity. 18. ILPA understands that the government has emphasized the importance of post-return monitoring as a means of securing compliance with the agreement made with Jordan. In practice, post-return monitoring is not capable of rendering diplomatic assurances an eVective safeguard against torture. The European Committee against the Prevention of Torture recently “indicate[d] it has yet to see convincing proposals for an eVective post-return monitoring mechanism.”282 Given the nature of torture it is not hard to see why. Torture is practiced in secret and denied by governments. Those who commit torture are often expert at keeping abuses from being detected, and those subject to torture are frequently reluctant to speak about it, fearing reprisals against themselves or family members. Moreover, states with poor records on human rights are unlikely to accept the kind of intrusive independent monitoring without notice that might be able to uncover such abuse. In addition, it should be noted neither the sending nor the receiving state have any incentive to acknowledge incidents of abuse, because to do so would be an admission that they had breached their obligations under international law. 19. In summary, experience shows that diplomatic assurances are an ineVective safeguard against torture, a fact reflected in the growing consensus against their use among international human rights bodies and experts. ILPA has grave concerns about the memorandum of understanding with Jordan, and other eVorts by the UK government to secure assurances from countries with poor records on torture, as a means to facilitate the deportation of persons acknowledged to be at risk of torture upon return. ILPA considers that returns based on such agreements are incompatible with the UK’s non-refoulement obligation under the Convention, and that by their use, the UK is weakening the global ban on torture. 25 September 2005
24. Joint submission from JUSTICE and Liberty on UNCAT
About Liberty Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.
About JUSTICE JUSTICE is a UK-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists.
Introduction 1. In October 2004, Liberty and JUSTICE jointly submitted evidence to the UN Committee Against Torture in response to the UK’s fourth periodic report under the UN Convention Against Torture (“CAT”). A copy of our submission has been annexed. 2. In that submission, we drew attention to a number of issues including the impact of indefinite detention upon those held under Part 4 of the Anti-Terrorism Crime and Security Act 2001 (“ATSCA”). We also raised concerns about the admissibility of evidence obtained by torture in proceedings before the Special Immigration Appeals Commission (“SIAC”) contrary to Article 15 CAT. Part 4 of ATCSA has now been repealed,283 but the admissibility of evidence contrary to Article 15 CAT remains a live issue. The House of Lords is due to hear an appeal against the ruling of the Court of Appeal in A and others v Secretary for the Home Department284 on this very issue in mid-October, in which both Liberty and JUSTICE have been granted leave to intervene.
280 UN Committee against Torture, Conclusions and recommendations of the Committee against Torture: Morocco, 5 February 2004, CAT/C/CR/31/2.; Amnesty International, Torture in the “anti-terrorism campaign”—the case of the Te´mara Detention Centre, 24 June 2004. 281 United States Department of State, Bureau of Democracy, Human Rights and Labor, 2004 Country Reports on Human Rights Practices: Egypt; see also, Human Rights Watch, Egypt’s Torture Epidemic, February 2004. 282 CPT Annual Report. 283 It was ruled incompatible with Articles 5 and 14 ECHR in A and others v Secretary for the Home Department [2004] UKHL 56, and repealed by section 16 of the Prevention of Terrorism Act 2005. 284 [2004] EWCA Civ 1123. 3358392039 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 154 Joint Committee on Human Rights: Evidence
3. We also wish to highlight another development of major concern since last October: the government’s proposed use of diplomatic assurances to remove foreign nationals suspected of involvement in terrorism back to countries known to practise torture.285 On 20 July, the Home Secretary Charles Clarke announced that agreement had been already reached in principle with Jordan.286 It is reported that similar memoranda of understanding are also being negotiated with Algeria and Egypt, among others.287 In the event that courts refuse to allow removals on the basis of such assurances, the government has indicated it may amend the Human Rights Act 1998.288 Deportation orders have now been made against 10 foreign nationals, at least nine of whom were previously subject to indefinite detention under Part 4 of ATCSA.289 4. In this submission, therefore, we reiterate our concerns about the admission of evidence in SIAC proceedings contrary to Article 15 CAT and give details of our opposition to the proposed use of diplomatic assurances contrary to Article 3 CAT.
Use of Diplomatic Assurances 5. Article 3(1) of CAT provides that:290 No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 6. This rule against non-refoulement is absolute and unqualified, and supported by identical obligations under other international instruments to which the UK is party: Article 3 of the European Convention on Human Rights291 and Article 7 of the International Covenant on Civil and Political Rights.292 The bar against non-refoulement includes all forms of removal, including deportation and immigration removal on the grounds of national security.293 7. There is a clear consensus among international legal experts that the use of diplomatic assurances are not an eVective safeguard against the risk that a returned person will be subject to torture or inhuman or degrading treatment by or in the receiving state. As such, their use is inconsistent with the absolute obligation against non-refoulement under Article 3 CAT. 8. In July 2004, the Council of Europe Commissioner for Human Rights Alvaro Gil-Robles noted the practice of some European countries of seeking diplomatic assurances against torture and ill-treatment by the receiving state. He noted “[t]he weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill- treatment”. Accordingly, due to the absolute nature of the prohibition against torture, “formal assurances cannot suYce where a risk nevertheless remains”. Senor Gil-Robles concluded that “it is highly questionable whether assurances can be regarded as providing indisputable safeguards against torture and ill-treatment”. 9. In August 2004, the then-UN special rapporteur on torture, Professor Theo van Boven reported to the UN General Assembly that, where a person faced return to a state where torture was systemic, “the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to”.294 10. In February 2005, the UN Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Robert K Goldman noted that “the mere fact that such assurances are sought is arguably a tacit admission by the sending State that the transferred person is indeed at risk of being tortured or ill-treated”.295 He recommended that “[g]iven the absolute obligation of States not to expose any person to the danger of torture by way of extradition, expulsion, deportation or other transfer, diplomatic assurances should not be used to circumvent the non-refoulement obligation”.296 11. In March 2005, the current UN Special Rapporteur on Torture, Professor Manfred Nowak said:297 In the situation that there’s a country where there’s a systematic practice of torture, no such assurances would be possible, because that is absolutely prohibited by international law, so in any case the government would deny that torture is actually systematic in that country, and could
285 First announced by the Home Secretary on 26 January in response to the Belmarsh judgment (see Hansard, HC Debates, 26 January 2005, Col 307), the government began actively seeking assurances following the London bombings on 7 July. 286 Hansard HC Debates 27 June 2005, Col 1256. 287 See eg BBC Online, “UN expert criticises terror plans”, 23 August 2005. 288 See Prime Minister’s press conference, 5 August 2005: “Should legal obstacles arise, we will legislate further including, if necessary, amending the Human Rights Act in respect of the interpretation of the European Convention on Human Rights”. 289 See eg Times Online, “Terror suspects ‘too dangerous for bail’”, 26 September 2005. 290 Identical obligations on the UK against non-refoulement also arise from the Article 3 of the European Convention on Human Rights () and Article 7 of the International Covenant on Civil and Political Rights. 291 See Soering v United Kingdom (1989) 11 EHRR 439 at paras 88–91. 292 See UN Human Rights Committee, General Comment 20 (1992), para 9: “States Parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement”. 293 See Chahal v United Kingdom (1996) 23 EHRR 413. 294 Report of the UN Special Rapporteur on Torture to the UN General Assembly, 23 August 2004, para 37. 295 UN Commission on Human Rights, Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, para 56. 296 Ibid, para 60. 297 BBC Radio 4, 4 March 2005. 3358392039 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 155
easily actually give these diplomatic assurances, but the practice then shows that they are not complied with. And there’s then no way or very, very little possibility of the sending country to actually—as soon as the person is in the other country—to make sure that this type of diplomatic assurances are complied with. 12. In May 2005, the UN Committee Against Torture condemned the use of diplomatic assurances in the case of Agiza v Sweden in which the Swedish government relied on diplomatic assurances from the Egyptian government to return an asylum seeker to Egypt where he was subsequently tortured.298 As a consequence of relying upon diplomatic assurances in circumstances where the risk of torture by the receiving state was clear, the Swedish government was found to be in breach of its obligations under Article 3 CAT. Specifically, the Committee found that:299 at the outset that it was known, or should have been known, to the [Swedish] authorities . . . that Egypt resorted to consistent and widespread use of torture against detainees, and that the risk of such treatment was particularly high in the case of detainees held for political and security reasons. 13. The Committee ruled, moreover, that the procurement of diplomatic assurances from Egypt against the suspect’s ill-treatment “did not suYce to protect against this manifest risk”.300 14. In September 2005, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment—the regional counterpart of the UN Committee Against Torture under the European Convention Against Torture301—issued its 15th General Report,302 in which it noted concerns over the use of diplomatic assurances:303 [I]f in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever oVer suYcient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise eVective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case? 15. The Committee concluded that, “while it retains an open mind on this subject”, it has “yet to see convincing proposals for an eVective and workable mechanism” for post-return monitoring of persons returned to countries with a record of practising torture.304 16. In the circumstances, we consider it clear that diplomatic assurances from countries that torture their own citizens oVer no eVective protection for the rights of persons removed. Nor do such assurances establish any real accountability or remedy in the event that torture or other ill-treatment does take place. 17. For instance, we note provision in the memorandum of understanding between the UK and Jordan for independent monitoring of assurances as follows:305 If the returned person is arrested, detained or imprisoned within three years of the date of his return, he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities. 18. We note, however, in the 2004 case of Youssef v Home OYce30624 concerning the seeking of diplomatic assurances from Egypt in 1999, that the International Committee of the Red Cross (“ICRC”) has previously refused to act as a monitor for such assurances:307 there was no alternative to access by British oYcials. The ICRC had a permanent presence there but had been refused access to prisoners; it would not visit particular prisoners without a general agreement allowing it access to all prisoners and would not get involved in any process which could in any way be perceived to contribute to, facilitate or result in the deportations of individuals to Egypt. 19. More recently, Amnesty International has stated that it would not work with the UK government to provide monitoring of such assurances308 and on 21 September, the Financial Times reported that Egypt’s National Council for Human Rights (NCHR) turned down a British proposal that it act as a safeguard
298 CAT/C/34/D/233/2003, 20 May 2005. 299 Ibid, para 13.4. 300 Ibid. 301 26 September 1987, CPT/Inf/C (2002) 1 EN. 302 CPT/Inf (2005) 17. 303 Ibid, para 39. 304 Ibid, para 41. 305 See Memorandum of Understanding between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the Hashemite Kingdom of Jordan regulating the provision of undertakings in respect of specified persons prior to deportation, 10 August 2005. 306 [2004] EWHC 1884. 307 Statement of the Foreign and Commonwealth OYce, cited ibid at para 26. 308 See “Amnesty refuses involvement in UK deportations” by James Sturcke, Guardian, 26 August 2005. 3358392039 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 156 Joint Committee on Human Rights: Evidence
against torture in the case of Egyptian dissidents threatened with deportation from the UK.309 We therefore consider it very unlikely that any credible body will be identified that is willing to undertake the role proposed by the memorandum with Jordan. 20. In any event, we note that the memorandum concluded with Jordan provides no mechanism for enforcement of its terms where either government reneges on its obligations. Under the terms of the agreement, either government may withdraw from the agreement giving six months notice. Where such withdrawal takes place, the memorandum provides that “the terms of this arrangement will continue to apply to anyone who has been returned in accordance with its provisions”. However, the memorandum provides no recourse in the event that a government withdrew from the arrangement with less than six months notice or opted not to continue to apply its terms to a person returned in accordance with its provisions. In short, there is no mechanism by which the UK government can enforce Jordan’s obligations under the memorandum in the event that its terms are breached. Instead, the approach of the UK government appears to be to accept the word of the receiving state entirely upon trust, notwithstanding abundant evidence that the states in question practise torture.
Evidence of Torture by Receiving States 21. We note that Jordan, Egypt and Algeria are all party to CAT.310 Despite this, all three countries have a record of using torture.
Jordan 22. The 2004 US State Department report on human rights practices in Jordan includes the following conclusions:311 Although the Government respected human rights in some areas, its overall record continued to reflect many problems. Reported continuing abuses included police abuse and mistreatment of detainees, allegations of torture, arbitrary arrest and detention, lack of transparent investigations and of accountability within the security services resulting in a climate of impunity, denial of due process of law stemming from the expanded authority of the State Security Court and interference in the judicial process, infringements on citizens’ privacy rights, harassment of members of opposition political parties, and significant restrictions on freedom of speech, press, assembly, and association. 23. In particular, the State Department report includes numerous detailed references to allegations of torture, cruel, inhuman, or degrading treatment by Jordanian police and security forces. According to Amnesty International’s 2005 country report on Jordan:312 Scores of people were arrested for alleged “terrorist” activity and at least 18 security-related cases proceeded before the [State Security Court]. The SSC invariably uses panels of military judges and fails to provide adequate safeguards for fair trial. In at least six of the trials, defendants alleged that their “confessions” were made under torture. At least one case was referred to the National Institute of Forensic Medicine which concluded that the defendant had not been tortured. AI remained concerned that no judicial and impartial investigations were initiated into torture allegations.
Egypt 24. Amnesty International’s country report on Egypt for 2005 states that torture “continued to be used systematically in detention centres throughout the country. Several people died in custody in circumstances suggesting that torture or ill-treatment may have caused or contributed to their deaths”.313 It provides, for instance, details of allegations of torture against suspected members of the Muslim Brothers organisation in Madinat Nasr, Cairo who “were reportedly beaten, suspended by the wrists or ankles and given electric shocks; some of them reportedly sustained broken bones and ribs as a result”.314 The AI report also notes that:315 [i]n the vast majority of cases of alleged torture, no one was brought to justice because the authorities failed to conduct prompt, impartial and thorough investigations. However, some trials of alleged torturers did take place, but only in criminal, not political cases. Compensation was provided in some cases of torture.
309 “Egypt human rights body rejects UK’s extradition proposal” by William Wallis, Financial Times, 21 September 2005. 310 Jordan acceded to the Convention on 13 November 1991, Egpyt acceded on 25 June 1986, and Algeria ratified the Convention on 12 September 1989. 311 US State Department Country Reports on Human Rights Practices, February 28, 2005. 312 Amnesty International Report 2005: Jordan covering events January–December 2004. 313 Amnesty International Report 2005: Egypt covering events January–December 2004. 314 Ibid. 315 Ibid. 3358392039 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 157
25. The Human Rights Watch 2005 Country Report on Egypt states that:316 Security forces and police routinely torture and mistreat detainees, particularly during interrogations. Torture in the past was used primarily against political dissidents, especially Islamists, but in recent years it has become rife in ordinary police stations as well, aVecting citizens who find themselves in custody as suspects or in connection with criminal investigations. Torture and ill-treatment are known or suspected to be the cause of at least seventeen deaths in detention in 2002 and 2003, including at least three cases at the hands of the State Security Investigations (SSI) branch of the Ministry of Interior, and additional cases of deaths in detention were reported in 2004. 26. The latest US State Department report on Egypt notes that in 2004:317 [t]he security forces continued to mistreat and torture prisoners, arbitrarily arrest and detain persons, hold detainees in prolonged pretrial detention, and occasionally engage in mass arrests. Local police killed, tortured, and otherwise abused both criminal suspects and other persons. 27. The State Department report notes that the Egyptian Constitution formally prohibits the infliction of “physical or moral harm” upon persons in custody: “however, torture and abuse of detainees by police, security personnel, and prison guards remained common and persistent”.318 It notes that:319 Despite . . . legal safeguards, there were numerous, credible reports that security forces tortured and mistreated detainees. Human rights groups reported that the State Security Investigations Service (SSIS), police, and other government entities continued to employ torture to extract information, coerce opposition figures to cease their political activities, and to deter others from similar activities. Reports of torture and mistreatment at police stations remained frequent. In prominent cases, defendants alleged that police tortured them during questioning . . .. Although the Government investigated torture complaints in some criminal cases and punished some oVending oYcers, punishments generally have not conformed to the seriousness of the oVence. 28. The report provides numerous and extensive details of specific allegations of torture of prisoners by the Egyptian authorities. It also describes the most common methods of torture used against those in state custody:320 Principal methods of torture reportedly employed by the police and the SSIS included stripping and blindfolding victims; suspending victims from a ceiling or doorframe with feet just touching the floor; beating victims with fists, whips, metal rods, or other objects; using electrical shocks; and dousing victims with cold water. Victims frequently reported being subjected to threats and forced to sign blank papers for use against themselves or their families should they in the future complain about the torture. Some victims, including male and female detainees and children, reported sexual assaults or threats of rape against themselves or family members. While the law requires security authorities to keep written records of detentions, human rights groups reported that the lack of such records often eVectively blocked investigation of complaints.
Algeria 29. The 2005 Annual Human Report of the Foreign and Commonwealth OYce notes the “many documented allegations of human rights abuses by the security forces and state-armed militia, including the enforced disappearances of at least 6000 people, abductions, torture and extra-judicial killings” during the 1990s321 and refers to fact that the UN Special Rapporteur on Torture continues to be denied permission to visit Algeria to investigate allegations of torture.322 30. The 2005 country report on Algeria produced by Amnesty International notes that torture was recently made a crime under the Algerian Penal Code. Despite this, “allegations of torture were generally not investigated by the authorities”.323 The Amnesty report notes:324 There were concerns that secret detentions, which continued in violation of national and international law, facilitated torture. Allegations of torture continued to be reported, particularly in cases involving what the government described as “terrorist” activities. 31. The US State Department report for Algeria in 2005 states that, despite new legal protections introduced, it has received reports from human rights groups, media and defense lawyers that “security forces continued to use torture when interrogating persons”.325 The report notes:326
316 Human Rights Watch, World Report 2005: Egypt. 317 US State Department Country Reports on Human Rights Practices, 28 February 2005. 318 Ibid. 319 Ibid. 320 Ibid. 321 Foreign and Commonwealth, Human Rights: Annual Report 2005 (Cm 6606) July 2005, p 117. 322 Ibid, p 118. 323 Amnesty International Report 2005: Algeria covering events January–December 2004. 324 Ibid. 325 US State Department Country Reports on Human Rights Practices, 28 February 2005. 326 Ibid. 3358392039 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 158 Joint Committee on Human Rights: Evidence
Though human rights lawyers have stated that the incidence and severity of torture is on the decline—in part due to better training of the security forces and alternative intelligence gathering techniques—they maintained that torture still occurred in military prisons, more frequently against those arrested on “security grounds.” Last year, the independent press reported that the “chiVon” method—placing a rag drenched in dirty water in someone’s mouth—was the preferred method of torture because it left no physical traces of assault. In 2003, AI reported an increased number of accounts detailing the usage of the wet rag method. 32. Again, the US State Department report provided several accounts of allegations of torture. It noted that the International Committee of the Red Cross was permitted to visit civilian prisons and pre-trial detention centres, “but it was still barred from the country’s military and high security prisons”.327 33. The 2003 Human Rights Watch report on Algeria similarly noted that, “while reports of torture were down in absolute numbers, prisoners were still at high risk of being tortured by their interrogators”.328 It stated that:329 Persons taken into detention, whether for security or common criminal oVences, were at risk of being tortured by their interrogators. Beatings and the “chiVon”—placing a rag soaked in dirty water or household chemicals over the nose and mouth to induce choking—were the most commonly reported torture methods. The use of electric shocks was also reported on occasion in diVerent detention centers.
Admission of Evidence Obtained under Torture Contrary to Article 15 CAT 34. In our joint submission to the Committee Against Torture, we set out our concerns at the position taken by the UK government in before the Court of Appeal in A and others v Secretary for the Home Department.330 Since that submission is attached, it is unnecessary to repeat those concerns here. 35. However, we wish to draw the Committee’s attention to the fact that the Home Secretary continues to argue that evidence obtained by means of torture inflicted by agents of a foreign state is admissible in proceedings before SIAC, notwithstanding the UK’s very clear obligation under Article 15 CAT that: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. 36. In particular, we note the witness statement of Eliza Manningham-Buller, Director of the Security Service dated 20 September 2005 upon which the Home Secretary seeks to rely in the forthcoming proceedings before the House of Lords. In reference to the recent prosecution of R v Bourgass and others,331 Dame Manningham-Buller notes that intelligence received from the Algerian authorities’ interrogation of Mohammed Meguerba was disclosed as unused material in that case. In those circumstances, no inquiries were made of [the Algerian authorities] about the precise circumstances that attended the questioning of Meguerba. In any event, any questioning of the [Algerian authorities] about their methods would have almost certainly have been rebuVed and at the same time would have damaged the relationship [between the UK and Algerian governments] to the detriment of our ability to counter international terrorism . . . There has subsequently been press speculation about the circumstances in which Megeurba was interviewed in Algeria. Unusually in this case, because of the central importance of what he was saying, British police oYcers sought direct access to him but that was not permitted by the Algerian authorities. Instead, questions were provided to the judicial authorities in Algeria through a formal letter of request, and Meguerba was formally examined on them at length by the Chief Examining Magistrate in Algiers . . . The Megeurba case provides an example of full co-operation with our Algerian partners [emphasis added]. 37. In our view, the evidence of the head of MI5 confirms the concern we expressed in October 2004 that “the SIAC process does not allow for consideration of whether evidence was obtained by way of torture”.332 Quite simply, there is no way for SIAC to determine whether any material received by the UK government from countries such as Algeria has been obtained under torture because the UK government itself does not know and is not about to ask. Liberty and JUSTICE are grateful to Professor Guy Goodwin-Gill of All Souls College and Blackstone Chambers, and Raza Husain of Matrix Chambers for their assistance in providing material for this briefing. September 2005
327 Ibid. 328 Human Rights Watch, World Report 2003: Algeria—Human Rights Developments. 329 Ibid. 330 See n1 above. 331 Unreported, 13 April 2005. 332 Para 12. 3358392040 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 159
25. Further joint submission from JUSTICE and Liberty re UK involvement in Extraordinary Rendition
About Liberty Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.
About JUSTICE JUSTICE is a UK-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists.
Introduction 1. Following reports that British airports are being or have been used as stopovers by US security services, involved in extraordinary renditions, the Joint Committee on Human Rights has requested supplementary evidence for consideration as part of its inquiry into the UK’s compliance with the United Nations Convention Against Torture (“UNCAT”). This submission is given in response to that call for evidence and supplements the earlier Joint Submission by Liberty and JUSTICE in September 2005. 2. Extraordinary rendition is “the deliberate transfer of terrorist suspects to foreign countries for interrogation, knowing that torture may be used”.333 A number of cases of extraordinary rendition have been reported. Two examples are set out below: On 26 September 2002, Maher Arar, a Syrian born Canadian citizen, landed in New York to change planes on his way home from a holiday. His name was on the US Watch List of terrorist suspects. He was arrested and held in the US for 13 days. He was then flown in an American jet to Jordan and driven to Syria, where he was tortured. He was released without charge in October 2003.334 Saad Iqbal Madni, a Pakistani was seized in Indonesia in January 2002. He was bundled into an executive jet and flown to Cairo without any extradition or judicial process. Iqbal was held in Cairo for two years before reappearing in Guantanamo Bay where he told fellow detainees who have since been released that he was tortured.335 3. This submission begins by outlining the allegations of UK involvement in extraordinary renditions and the Government’s responses to those allegations (A table summarising these is provided at Annex 1). We then outline the relevant obligations on the UK under international human rights law and domestic law.
Allegations of UK Involvement and Requests for Information 4. Press reports of UK involvement in extraordinary rendition have become prominent following an article published in the Guardian on 12 September 2005 that highlighted the use of British airports in the practice of extraordinary rendition.336 The article reported that: “Aircraft involved in the operations have flown into the UK at least 210 times since 9/11, an average of one flight a week. The 26-strong fleet run by the CIA have used 19 British airports and RAF bases, including Heathrow, Gatwick, Birmingham, Luton, Bournemouth and Belfast.” Earlier this month Amnesty International also published a report into rendition revealing that six planes used by the CIA for renditions have made some 800 flights in or out of European airspace.337 5. The possibility of UK airspace or airports being used in the practice of extraordinary rendition has also been raised on a number of occasions within Parliament. For example, the Foreign AVairs Committee wrote a letter to the Foreign and Commonwealth OYce on 25 February 2005 requesting a memorandum setting out the Government’s policy with regard to this practice.338 Parliamentarians that have asked questions about the UK’s involvement in rendition have included Baroness D’Souza, Sir Menzies Campbell MP, Mr Drew MP, Mr Mullin MP, Mr Alexander MP, Lord Lester QC and Mr Kennedy MP. In December Andrew Tyrie MP launched an All Party Parliamentary Group formed to investigate extraordinary rendition.
333 Select Committee on Foreign AVairs, Foreign Policy Aspects of War Against Terror: Sixth Report of 2004/2005, HC 36-I, para 89. 334 http://www.newyorker.com/fact/content/?050214fa–fact6 335 Ian Cobain, Stephen Grey and Richard Norton-Taylor “Destination Cairo: human rights fears over CIA flights”, Guardian, 12 September 2005. 336 Ibid. Earlier press reports included: Stephen Gray, “How Britain helps the CIA run secret torture flights“”, The Independent, 10 February 2005. 337 http://news.amnesty.org/index/ENGAMR511982005 338 http://www.publications.parliament.uk/pa/cm200405/cmselect/cmfaV/36/36we15.htm 3358392040 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 160 Joint Committee on Human Rights: Evidence
6. On 29 November in response to growing concerns about the alleged practice of “extraordinary rendition”, Liberty wrote to: (a) 10 Chief Constables, whose jurisdiction includes specific airports and airbases in England, and (b) The Foreign Secretary. Liberty asked that the Chief Constables honour their obligations under international and domestic law to conduct criminal investigations into these allegations (discussed below). Liberty also asked that the Government seek assurances from the US government that British territory has not and will not be used for the purposes of extraordinary rendition and, regardless of such assurance, to investigate whether British sovereignty has been abused. On 19 December Liberty held a meeting with Greater Manchester Police Chief Constable Michael Todd. Chief Constable Todd has confirmed that he will look into “extraordinary rendition” flights on behalf of the Association of Chief Police OYcers (ACPO). According to Chief Constable Todd, the police have begun initial inquiries and will follow Liberty’s recommendations for further questioning. The police will also be collecting further evidence and will be meeting with Liberty again in the new year.
The Government’s Response 7. Passivity and claims of ignorance have characterised the nature of the Government’s response to allegations of UK involvement in extraordinary renditions and requests for information. The Foreign AVairs Committee made the following comment earlier this year about the Government’s response to its inquiries: “We conclude that the Government has failed to deal with questions about extraordinary rendition with the transparency and accountability required on so serious an issue. If the Government believes that extraordinary rendition is a valid tool in the war against terrorism, it should say so openly and transparently, so that it may be held accountable. We recommend that the Government end its policy of obfuscation and that it give straight answers to the Committee’s questions of 25 February.”339 This description would also apply to the Government’s responses to questions by individual Parliamentarians. These have focused on denying awareness of the UK’s airspace or airports being used for the purposes of rendition and explaining that the Government has not “received any requests, nor granted any permissions, for the use of UK territory or airspace for such purposes”.340 8. We do not consider it realistic to expect that the United States would have provided a document seeking specific permission to use Britain for extraordinary rendition and would not, therefore, expect a file- check to produce any evidence to confirm or deny allegations. We consider that a proactive investigation is needed to achieve establish whether UK airspace or airports is being used in the practice of extraordinary rendition. 9. The only proactive step taken by the UK Government with respect to allegations of UK involvement in extraordinary rendition has been on the basis of its presidency of the European Union. In November the EU Foreign AVairs Council requested the UK Presidency to seek clarification from the US on the recent claims about alleged detention or transportation of terrorist suspects in or through EU member states. On 29 November 2005, Jack Straw wrote a letter to Condoleezza Rice requesting any “clarification the US can give about these reports in the hope that this will allay parliamentary and public concerns”.341 10. In response to this letter, Dr Rice commented that “For decades, the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held or brought to justice.”342 She explained, “Rendition is a vital tool in combating transnational terrorism. Its use is not unique to the United States, or to the current administration”.343 She denied allegations of direct US involvement in torture and emphasised that the “purpose” of the rendition was not that the rendered person be tortured. She did, however, avoid stating whether the countries to which people were rendered did, as a matter of fact, torture terrorist suspects and whether, if this were the case, the US would nevertheless use the evidence obtained. Many of the reported examples of rendition in the context of counter-terrorism have involved taking people to countries which, according to the US Department of State’s own reports, routinely engage in torture. The 2004 report for Syria, for example, explains that “continuing serious abuses included the use of torture in detention, which at times resulted in death”344 and the 2004 report for Egypt states that “[t]he security forces continued to mistreat and torture prisoners”.345
339 Foreign Policy Aspects of the War against Terrorism, Sixth Report of 2004/2005, HC 36-I, para 98. 340 HC Deb, 18 October 2005, col 910W (Mr Pearson MP). 341 http://www.fco.gov.uk/Files/KFile/Straw—EU—CondiRice—letter,0.pdf 342 http://news.bbc.co.uk/2/hi/americas/4500630.stm 343 Ibid. 344 http://www.state.gov/g/drl/rls/hrrpt/2004/41732.htm 345 http://www.state.gov/g/drl/rls/hrrpt/2004/41720.htm 3358392040 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 161
Extraordinary Rendition and International Human Rights Law 11. The total prohibition of torture is the one absolute in the Human Rights framework346. The fundamental nature of the prohibition on torture is reflected, inter alia, in the number of state parties to UNCAT, by the fact that the right not to be tortured is non-derogable and unqualified and by the fact that the absolute prohibition on torture is accepted as a norm of international law. The European Court of Human Rights has, for example, frequently reiterated the fundamental nature of the protection against torture: “Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe.”347 The European Court has described torture as carrying a “special stigma”,348 and the preamble to UNCAT explains torture oVends against the “inherent dignity of the human person”. 12. The fundamental importance of the prohibition on torture within the human rights framework explains the extensive obligations imposed on states to ensure that a person is not subjected to torture. Article 1 of the European Convention on Human Rights requires states to secure to everyone within their jurisdiction all of the substantive rights protected by the Convention. The European Court has, however, interpreted Article 1 as requiring much more by way of positive state action in the context of Article 3 than is required in the context of many other convention rights.349 UNCAT also expressly imposes on state parties a number of substantial obligations to prevent people being tortured. The actions which the United Kingdom is required to take under international human rights law to protect against torture include: — Putting in place and enforcing eVective criminal laws to punish people who have committed acts of torture, including conspiracy in torture and aiding and abetting torture.350 — Taking eVective administrative measures to prevent torture, conspiracy in torture and aiding and abetting torture.351 — Undertaking eVective oYcial investigations into credible allegations of serious ill-treatment by state agents, capable of leading to the identification and punishment of those responsible.352 — Not to expel or return (“refouler”) a person to another state in which there are substantial grounds for believing that s/he would be in danger of being subjected to torture.353 When deciding whether “substantial grounds” for the danger of torture exist, the State is to “take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights”.354 13. We believe that the practice of extraordinary rendition could constitute torture. Detaining someone where the detainee is aware that the purpose of the detention is to bring him to a place where he will be subjected to physical torture might in itself amount to torture as it will undoubtedly inflict severe mental suVering on the detainee. This situation is analogous to the “death row phenomenon” considered by the European Court of Human Rights in Soering v UK,355 in which the Court found that the mental anguish experienced by someone sentenced to death in anticipating the violence that will be done to him breaches Article 3 of the European Convention on Human Rights. Prolonged, incommunicado detention in an unknown location amounts to torture in breach of Article 7 of the International Covenant on Civil and Political Rights as was held in the United Nations’ Human Rights Committee’s Decision on the application of El-Megreisi.356 Those involved in the practice of extraordinary rendition may also be complicit in the ultimate act of torture in the destination country. Complicity in torture is a clear violation of international human rights law, requiring eVective investigation and criminal prosecution. 14. The nonrefoulement obligation prohibits transfers by the state of an individual from its own territory to another state where the individual is in danger of torture. This obligation must be interpreted suYciently broadly in order to give practical eVect to the prohibition against torture. Therefore it must, for example, prohibit the United Kingdom providing any assistance to third parties (ie CIA agents) who wish to remove people from the UK and to transfer them to countries in which there is a substantial risk that they will be
346 Although there are elements of Article 4 and Article 7 that are absolute. 347 Soering v. United Kingdom [1989] 11 EHRR 439, para 88. 348 Ireland v. United Kingdom [1978] 2 EHRR 25, para 168. 349 Cf Z and Ors V United Kingdom [2002] 34 EHRR 3. 350 cf Articles 2, 4 and 5 UNCAT and Article 3 ECHR as interpreted in Cyprus v Turkey [1976] 4 EHRR 482. 351 Article 2 UNCAT and Article 3 ECHR as interpreted in. 352 Assenov v Bulgaria (1998) 28 EHRR 652. 353 Article 3.1 UNCAT and Article 3 ECHR, as interpreted in Soering v. United King om [1989] 11 EHRR 439. 354 UNCAT Art 3(2). 355 (1989) 11 EHRR 439. 356 CCPR/C/50/D/440/1990. 3358392040 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 162 Joint Committee on Human Rights: Evidence
subjected to torture. It must also require the United Kingdom to take reasonable steps to prevent people within its territory from being removed by third parties to other countries where there is a substantial risk that they will be tortured and to investigate credible evidence that this has happened. 15. The practice of extraordinary rendition would violate a number of aspects of the prohibition against torture under international law. As discussed above, there is credible evidence that UK airspace and airports have been used for the purposes of this practice. We therefore consider that the United Kingdom government is required under international law to conduct an eVective investigation in order to ascertain whether this is in fact the case. EVective administrative measures should be taken to prevent the use of UK airports or airspace for the purposes of extraordinary rendition. In appropriate cases, criminal prosecution might also be required.
Obligations under Domestic Law 16. In addition to its obligations under international human rights law, a variety of domestic oVences would apply to extraordinary rendition. For example: —ItisanoVence for anyone, anywhere in the world intentionally to inflict severe pain or suVering on another person.357 The oVence may be committed either by a public oYcial or by someone acting in an oYcial capacity, or by someone acting at the instigation of, or with the consent or acquiescence of, a public oYcial or someone acting in an oYcial capacity. As noted above, we believe that detaining someone where the detainee is aware that the purpose of the detention is to bring him to a place where he will be subjected to physical torture is itself torture. — As the oVence can be committed anywhere in the world, CIA operatives, by detaining people within the UK with a view to delivering them to third countries, would be liable for the oVences of: aiding and abetting acts which are oVences contrary to British law (notwithstanding that they are committed abroad), or procuring such acts;358 or conspiracy with others in third countries to commit such acts.359 — If CIA operatives are detaining people against their will within the UK, they are liable for the oVence of false imprisonment which is committed when a person intentionally and unlawfully restricts a person’s freedom of movement. Liberty and JUSTICE are unaware of any provision of British law that would allow CIA operatives to act in this way. — The CIA operatives could also be charged with the oVence of kidnapping. According to the House of Lords decision in RvD360 the oVence consists of the taking or carrying away of one person by another, by force or fraud, without the consent of the person so taken or carried away and without lawful excuse. Again, we are unaware of any provision in British law that would allow the CIA operatives to act in this way. 17. As there is a reasonable suspicion that the CIA operatives are committing oVences contrary to UK domestic law, the police are under a duty to investigate as a matter or domestic law. December 2005
Annex 1
EXTRAORDINARY RENDITION: TIMELINE Date Event 16 December 2005 “US torture jets were refuelled in Britain” by Daniel McGrory in the Times http://www.timesonline.co.uk/article/0,,2-1934145,00.html 14 December 2005 Prime Ministers Questions Mr Charles Kennedy (Ross, Skye and Lochaber) (LD): Last week, the Prime Minister acknowledged that he had been aware of the United States’ policy of rendition for quite some time. If terrorist suspects are not being transported to a third country for the purposes of torture or mistreatment, will he explainto the House for what purpose they are being transported? The Prime Minister: First, let me again make it clear to the right hon. Gentleman that this Government are completely and totally opposed to torture or ill-treatment in any set of circumstances. Our country is a signatory to the United Nations convention against the use of torture, and we will continue to uphold its provisions absolutely. Rendition does not simply apply in those circumstances; it can apply in other circumstances, as the United States
357 Section 134 Criminal Justice Act 1988. 358 See s 8 Accessories and Abettors Act 1861. 359 See ss 1 and 1A Criminal Law Act 1977. 360 [1984] AC 778. 3358392041 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 163
Secretary of State has made clear. To be fair, they have also said that they are totally opposed to the use of torture or ill-treatment in any circumstances. Mr Kennedy: In welcoming precisely what the Prime Minister has just said, does he not therefore acknowledge that our country is surely under a legal and moral obligation to investigate why flights are being allowed to pass through our country for rendition purposes? Full inquiries are now taking place in Italy, Spain, Germany and Canada? Why are they not taking place in the United Kingdom? [37180] The Prime Minister: My right hon. Friend the Foreign Secretary has just passed me a copy of his parliamentary answer from, I think, a few days ago, which states: “Careful research by oYcials has been unable to identify any occasions since 11 September 2001, or earlier in the Bush Administration, when we received a request for permission by the United States for a rendition through UK territory or airspace, nor are we otherwise aware of such a case.” On United States Government flights coming in and out, those take place for a whole series of reasons. We receive visits from people from the United States Government the entire time.—[Interruption.] I have to say that the Liberal Democrats are quite extraordinary sometimes. The idea that we should investigate every time that a United States Government plane flies into this country is completely absurd. 14 Dec 2005 : Column 1297 http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm051214/ debtext/51214-03.htm<51214-03–spnew12 13 December 2005 Foreign AVairs Committee takes evidence from Rt Hon Jack Straw MP, Secretary of State for Foreign and Commonwealth AVairs, on rendition flights 13 December 2005 Report presented to the Council of Europe by Senator Dick Marty of Switzerland finds: “From a general point of view, the rapporteur underlined that the information gathered to date reinforced the credibility of the allegations concerning the transfer and temporary detention of individuals, without any judicial involvement, in European countries. http://assembly.coe.int/ASP/Press/StopPressView.asp?CPID%1714 12 December 2005 Liberty renews call for formal investigation into CIA flights through UK http://www.liberty-human-rights.org.uk/press/2005/calls-for-investigation-into- torture-flights.shtml 12 December 2005 Jack Straw MP states on the Today programme that there is no record of the US requesting permission for rendition flights to stop in the UK http://www.fco.gov.uk/servlet/Front?pagename%OpenMarket/Xcelerate/ ShowPage&c%Page&cid%1007029391629&a%KArticle&aid%1133773454355 12 December 2005 Parliamentary Written Questions Sir Menzies Campbell: To ask the Secretary of State for Foreign and Commonwealth AVairs whether United Kingdom security services personnel have travelled in an aircraft used for the purpose of an international rendition. [36443] Mr Straw: It is not the Government’s policy to comment on intelligence matters. Sir Menzies Campbell: To ask the Secretary of State for Foreign and Commonwealth AVairs on how many occasions and at what locations oYcials in the United Kingdom security services have questioned individuals who have been subject to an international rendition or other involuntary transfer by United States oYcials. [36444] Mr Straw: It is not the Government’s policy to comment on intelligence matters. Sir Menzies Campbell: To ask the Secretary of State for Foreign and Commonwealth AVairs whether any aircraft used by United States oYcials for the purpose of an international rendition has landed at a UK airport. [36445] Mr Straw: I refer the right hon. Member to the answer I gave him today (UIN 36414). 3358392041 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 164 Joint Committee on Human Rights: Evidence
Sir Menzies Campbell: To ask the Secretary of State for Foreign and Commonwealth AVairs what information oYcials in the United Kingdom security services collect on (a) the detention of individuals in European states by or at the request of United States oYcials and (b) the transit through UK airports of aircraft used by United States oYcials for the purpose of international rendition. [36446] Mr Straw: It is not the Government’s policy to comment on intelligence matters. Mr Ancram: To ask the Secretary of State for Foreign and Commonwealth AVairs what the Government’s policy is on the use of (a) UK airspace and (b) UK overseas territory for the purposes of extraordinary rendition flights involving those accused of terrorist activities; and if he will make a statement. [36673] Mr Straw: I refer the right hon. Member to the answer I gave the right hon. Member for North East Fife (Sir Menzies Campbell) today (UIN 36414). Mr Ancram: To ask the Secretary of State for Foreign and Commonwealth AVairs what representations he has received from his EU counterparts regarding the use of EU airspace for extraordinary rendition flights involving those accused of terrorist activities; and if he will make a statement. [36674] Mr Straw: At the request of my EU colleagues, as the EU President, I wrote to the United States (US) Secretary of State on 29 November about media reports of US rendition operations and detention camps in Europe. The Secretary of State replied on 6 December enclosing a copy of her public statement of 5 December, available at http://www.state.gov./secretary/rm/2005/57602.htm, by way of response. Mr Ancram: To ask the Secretary of State for Foreign and Commonwealth AVairs whether the Government have made representations to the US Administration regarding reports of the use of British territory and overseas territories, including sovereign bases, for purposes of extraordinary rendition flights involving those accused of terrorist activities; and if he will makea statement. [36677] Mr Straw: I refer the right hon. Member to the answer I gave the right hon. Member for North East Fife (Sir Menzies Campbell) today (UIN 36414). 12 Dec 2005 : Column 1644W http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm051212/text/ 51212w17.htm<51212w17.html–sbhd3 8 December 2005 Baroness d’Souza tables an amendment to the Civil Aviation Bill to require police or customs to take action against the practice of rendition if they think that British airspace is being used. “The amendment is a preliminary eVort to examine the Government’s opportunities and constraints in combating the practice of extraordinary renditions; and to provide a simple, eVective and convenient mechanism for intervention in operations contrary to international norms that uphold human rights” The amendment to be reintroduced at Report stage in January 2006. Lord Hodgson of Astley Abbots in the debate refers to the speech made by Condoleezza Rice, and an analysis of it made by Professor James Crawford of Cambridge University http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds05/text/ 51208-48.htm 8 December 2005 Parliamentary Written Question. Sir Menzies Campbell: To ask the Secretary of State for Transport on how many occasions since 2001 US-registered aircraft tail number (a) N44982, formerly N8068V and N379P and (b) N313P has landed in the United Kingdom; and at which airports. [33246] Ms Buck: The Department for Transport has no record of these aircraft landing at UK airports, which indicates that if these aircraft landed in the UK they were either not involved in civil commercial transport or that they were stopping for technical purposes, for example, to refuel. As such they would not require the Secretary of State for Transport’s permission. 8 Dec 2005 : Column 1466W 3358392041 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 165
7 December 2005 Prime Ministers Questions Mr. Charles Kennedy (Ross, Skye and Lochaber) (LD): The United States Secretary of State said yesterday that “extraordinary rendition” had been conducted in co-operation with European Governments. To what extent, therefore, have the Government co-operated in the transport of terrorist suspects to Afghanistan and elsewhere, apparently for torture purposes? The Prime Minister: First, let me draw a very clear distinction indeed between the idea of suspects being taken from one country to another and any sense whatever that ourselves, the United States or anyone condones the use of torture. Torture cannot be justified in any set of circumstances at all. The practice of rendition as described by Secretary of State Condoleezza Rice has been American policy for many years. We have not had such a situation here, but that has been American policy for many, many years. However, it must be applied in accordance with international conventions, and I accept entirely Secretary of State Rice’s assurance that it has been. Mr. Kennedy: Given that assurance, can the Prime Minister therefore explain why the published evidence shows that almost 400 flights have passed through 18 British airports in the period of concern? When was he as Prime Minister first made aware of that policy, and when did he approve it? The Prime Minister: In respect of airports, I do not know what the right hon. Gentleman is referring to. In respect of the policy of rendition, it has been the policy of the American Government for many years. 7 Dec 2005 : Column 863 http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm051207/ debtext/51207-03.htm£51207-03–spnew25 6 December 2005 “Britain’s role in war on terror revealed” by Ian Cobain, Stephen Grey and Richard Norton-Taylor in the Guardian 6 December 2005 The American Civil Liberties Union file a lawsuit against the CIA on behalf of Khaled El-Masri, an innocent German citizen victimized by the CIA’s policyof “extraordinary rendition.” 5 December 2005 Liberty’s response to Condoleezza Rice’s statement http://www.liberty-human-rights.org.uk/press/2005/rice-s-defence-of-cia- flights.shtml 5 December 2005 Speech by Condoleezza Rice admitting the use of rendition by the US http://news.bbc.co.uk/2/hi/americas/4500630.stm 5 December 2005 Andrew Tyrie MP launches All Party Parliamentary Group formed to investigate extraordinary rendition 5 December 2005 “UK ‘breaking law’ over CIA secret flights” by Ian Cobain and Luke Harding in the Guardian 5 December 2005 Parliamentary Written Question. Lord Lester of Herne Hill asked Her Majesty’s Government: Whether they will investigate the allegations made by the Guardian on 22 November that British airfields have been used by the Central Intelligence Agency for extraordinary rendition flights to transport individuals to foreign countries where they may risk torture or inhumane treatment. [HL2495] Lord Triesman: The Government are not aware of the use of UK territory or airspace for the purposes of “extraordinary rendition”, nor has the Government received any requests, nor granted, any permissions, for the use of UK territory or airspace for such purposes. We are aware of media allegations about “extraordinary rendition” operations allegedly conducted by the US authorities, and my right honourable friend, the Foreign Secretary, has written to the US Secretary of State on behalf of EU partners. Under UK and international law, carriers on technical stopovers are not obliged to provide a passenger list 5 Dec 2005 : Column WA75 http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds05/text/ 51205w01.htm 5 December 2005 Parliamentary Written Question. Mr Ancram: To ask the Secretary of State for Foreign and Commonwealth AVairs whether UK Government oYcials have discussed with the US 3358392041 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 166 Joint Committee on Human Rights: Evidence
Administration the use of EU airspace for the purpose of the extraordinary rendition of those accused of terrorist activities since 11 September 2001; and if he will make a statement. [33818] Ian Pearson: We raise a range of issues with the United States Administration on a regular basis. The Government are aware of media allegations about “extraordinary rendition” operations allegedly conducted by the US authorities, and my right hon. Friend, the Foreign Secretary, has written to the US Secretary of State Condoleezza Rice, on behalf of EU Partners. 5 Dec 2005 : Column 1023W http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm051205/text/ 51205w30.htm 5 December 2005 Amnesty International reports “800 secret CIA flights into Europe” December 2005 New York University School of Law publishes “Torture by Proxy: International Law Applicable to ‘Extraordinary Renditions’” 30 November 2005 Liberty writes to Jack Straw to ask him to find out whether UK airports are being used for extraordinary rendition, and to Chief Constables requesting the investigation of the allegations. http://www.liberty-human-rights.org.uk/torture/er-letter-to-jack-straw.PDF http://www.liberty-human-rights.org.uk/torture/er-letter-to-police.PDF 29 November 2005 Jack Straw writes to Condoleezza Rice asking for “clarification” of media reports suggesting violations of international law http://www.fco.gov.uk/Files/KFile/Straw–EU–CondiRice–letter,0.pdf 29 November 2005 Justice Commissioner Frattini has said that should it be found that any EU country were hosting secret detention centres, he would “be obliged to propose serious consequences, including suspension of voting rights in the Council”. 23 November 2005 The EU Foreign AVairs Council requests the UK Presidency of the EU to seek clarification from the US on the recent claims of CIA prisons in Europe. 24 October 2005 Uncorrected Evidence of Jack Straw MP before the Foreign AVairs Committee Q105 Sandra Osborne: I would like to ask you about the issue of extraordinary rendition. In response to this Committee’s report of last year on the war against terrorism, the government said that it was not aware of the use of its territory or air space for the purposes of extraordinary rendition. However, it appears that there is a growing body of evidence to suggest that the UK air space is indeed being utilised for this purpose, albeit mainly in the media. Some of the suggestions seem to be extremely detailed. For example, the Guardian has reported that aircraft involved in operations have flown into the UK at least 210 times since 9/11, an average of one flight a week. It appears that the favourite destination is Prestwick Airport, which is next to my constituency, as it happens. Can youcomment on that? What role is the UK playing in extraordinary rendition? Mr Straw: The position in respect of extraordinary rendition was set out in the letter that the head of our parliamentary team wrote to Mr Priestly, your Clerk, on 11 March; and the position has not changed. We are not aware of the use of our territory or air space for the purpose of extraordinary rendition. We have not received any requests or granted any permissions for use of UK territoryor air space for such purposes. It is perfectly possible that there have been two hundred movements of United States aircraft in and out of the United Kingdom and I would have thought it was many more; but that is because we have a number of UN air force bases here, which, under the Visiting Forces Act and other arrangements they are entitled to use under certain conditions. Ido not see for a second how the conclusion could be drawn from the fact that there have been some scores of movements of US military aircraft—well, so what— that that therefore means they have been used for rendition. That is a very long chain! Q106 Sandra Osborne: The UN Commission on Human Rights has started an inquiry into the British Government’s role in this. Is the Government co- operating fully with that inquiry? Why would they start an inquiry if there were no reason to believe that this was actually happening? Mr Straw: People start inquiries for all sorts of reasons. I assume we are co- operating with it. I am not aware of any requests, but we always co-operate with such requests. 3358392041 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Joint Committee on Human Rights: Evidence Ev 167
Q107 Mr Keetch: They are not flying under US military flags; these are Gulfstream aircraft used by the CIA. They have a 26-strong fleet of Gulfstream aircraft that are used for this purpose. These aircraft are not coming into British spaces; they are coming into airports. Some are into bases like Northolt, and some into bases like Prestwick. Whilst it is always good to have the head of your parliamentary staV respond to our Clerk, Mr Priestley, could you give us an assurance that you will investigate these specific flights; and, if it is the case that these flights are being used for the process of extraordinary rendition, which is contrary to international law and indeed contrary to the stated policy of Her Majesty’s Government, would you attempt to see if they should stop? Mr Straw: I would like to see what it is that is being talked about here. I am very happy to endorse, as youwouldexpect, and I did endorse, the letter sen t by our parliamentary team to your Clerk on 11 March. I am happy, for the avoidance of any doubt, to say that I specifically endorse its contents. If there is evidence, we will look at it, but a suggestion in a newspaper that there have been flights by unspecified foreign aircraft in and out of the United Kingdom cannot possibly add up to evidence that our air space or our facilities have been used for the purpose of unlawful rendition. It just does not. Q108 Mr Keetch: I accept that, but if there were evidence of that, you would join with us, presumably, in condemning . . . Mr Straw: I am not going to pre-judge an inquiry. If there were evidence, we would look at it. So far there we have not seen any evidence. http://www.publications.parliament.uk/pa/cm200506/cmselect/cmfaV/uc573-ii/ uc57302.htm 24 October 2005 Parliamentary Written Question Danny Alexander: To ask the Secretary of State for Transport if he will take steps to establish whether aircraft passing through UK airports are being used for the extraordinary rendition of terrorist suspects; and if he will make a statement. [19226] Karen Buck (Parliamentary Under-Secretary, Department of Transport) [holding answer 19 October 2005]: Where aircraft are making refuelling or other technical stops at UK airports there is no requirement on the operators to provide passenger lists. We are not currently aware of any evidence that aircraft passing through UK airports have been used for the purposes described. 24 Oct 2005 : Column 5W 19 October 2005 Parliamentary Written Question Mr Drew: To ask the Secretary of State for Foreign and Commonwealth AVairs whether the UK Government allows the use of UK airspace for the extraordinary rendition of those accused of terrorist activities. [19215] Dr. Howells (Minister of State, Foreign and Commonwealth OYce): The Government are not aware of the use of their territory or airspace for the purposes of “extraordinary rendition”. The Government have not received any requests, nor granted any permissions, for the use of UK territory or airspace for such purposes. 19 Oct 2005 : Column 1094W 18 October 2005 Parliamentary Written Question Sir Menzies Campbell: To ask the Secretary of State for Foreign and Commonwealth AVairs how many individuals have been deported or otherwise involuntarily transferred from the United States to (a) Middle Eastern and (b) Central Asian countries on flights which have landed in the United Kingdom in each of the last four years. [16674] Ian Pearson (Minister of State for Trade): The Government are not aware of the use of their territory or airspace for the purposes of “extraordinary rendition”. The Government have not received any requests, nor granted any permissions, for the use of UK territory or airspace for such purposes. 18 Oct 2005 : Column 910W 17 October 2005 Parliamentary Written Question Mr Mullin: To ask the Secretary of State for Foreign and Commonwealth AVairs when he received a letter from Martin Scheinin, a rapporteur for the UN Commission on Human Rights, regarding alleged British involvement in extraordinary rendition; and if he will place a copy of his response in the 3358392041 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1
Ev 168 Joint Committee on Human Rights: Evidence
Library. [17841] Ian Pearson: The Government have not received a letter from Professor Martin Scheinin, the UN Special Rapporteur on Human Rights and Terrorism, on the specific subject of extraordinary rendition. We have received two letters from Professor Scheinin seeking information on counter-terrorism measures employed or proposed by the Government. The Home OYce is dealing with both letters and will respond. We will then co-ordinate with them and Professor Scheinin to see if copies of the Government’s responses to him can be placed in the Library of the House. I will let my hon. Friend know if and when this can be done. 17 Oct 2005 : Column 730W http://www.parliament.the-stationery-oYce.co.uk/pa/cm200506/cmhansrd/ cm051017/text/51017w24.htm
12 September 2005 “Destination Cairo: human rights fears over CIA flights” Ian Cobain, Stephen Grey and Richard Norton-Taylor The Guardian “Drawing on publicly available information from the US Federal Aviation Administration, the Guardian has compiled a database of flight records which shows the extent of British logistical support. Aircraft involved in the operations have flown into the UK at least 210 times since 9/11, an average of one flight a week. The 26-strong fleet run by the CIA have used 19 British airports and RAF bases, including Heathrow, Gatwick, Birmingham, Luton, Bournemouth and Belfast. The favourite destination is Prestwick, which CIA aircraft have flown into and out from more than 75 times. Glasgow has seen 74 flights, and RAF Northolt 33.
12 September 2005 Baroness D’Souza rose to ask Her Majesty’s Government what they are doing to meet their obligations as a party to the United Nations Convention Against Torture. Lord Falconer of Thoroton stated that: “I have no knowledge—and I have asked—that we have ever been involved in either rendition of the sort to which the noble Baroness referred, or extraordinary rendition. The noble Baroness, Lady D’Souza, raised the issue of other countries refuelling in this country and then going on and something happening on the plane. We do not know of that. We have signed the Chicago convention that allows refuelling stops withouta requirement for the country to say what is going on in that particular plane.I cannot give an assurance as to what is going on, but that is the nature of the aviation convention we have signed. I cannot take the matter any further than that.” (Col. 376) http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds05/text/ 51012-22.htm
22 March 2005 Select Committee on Foreign AVairs, Sixth Report “We conclude that the Government has failed to deal with questions about extraordinary rendition with the transparency and accountability required on so serious an issue. If the Government believes that extraordinary rendition is a valid tool in the war against terrorism, it should say so openly and transparently, so that it may be held accountable. We recommend that the Government end its policy of obfuscation and that it give straight answers to the Committee’s questions of 25 February” (Paragraph 98) http://www.publications.parliament.uk/pa/cm200405/cmselect/cmfaV/36/ 3607.htm 11 March 2005 Foreign and Commonwealth OYce replies to the Foreign AVairs Committee letter of 25 February 2005. “Whether rendition is contrary to international law depends on the particular circumstances of each case. We encourage all members of the international community to respect international law and human rights standards. . . The British Government is not aware of the use of its territory or airspace for the purposes of “extraordinary rendition”. The British Government has not received any requests, nor granted any permissions, for the use of UK territory or airspace for such purposes” http://www.publications.parliament.uk/pa/cm200405/cmselect/cmfaV/36/ 36we16.htm 3358392041 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 169 6 March 2005 “Rule change lets CIA freely send suspects abroad to jails” The New York Times quoted former US government oYcials who claim that the CIA had flow 100–150 suspects to other counties since 11 September 2001. 25 February 2005 Foreign AVairs Committee writes to the Foreign and Commonwealth OYce asking for information about extraordinary rendition. http://www.publications.parliament.uk/pa/cm200405/cmselect/cmfaV/36/ 36we15.htm 20 February 2005 Craig Murray (former Ambassador to Uzbekistan) states in the Independent on Sunday that “There is increasing evidence that America is shopping people round the world to be tortured . . .I saw it in Uzbekistan because I happened to be there, but it’s also happening in countries like Egypt and Saudi Arabia” “This UK Diplomat says Britain is part of a worldwide torture plot” the Independent on Sunday 14 February 2005 Article in The New Yorker by Jane Meyer—“Outsourcing torture—The secret history of America’s ‘extraordinary rendition’ program” details the extraordinary rendition of Mr. Maher Arar. http://www.newyorker.com/fact/content/?050214fa–fact6 10 February 2005 “How Britain helps the CIA run secret torture flights” Stephen Gray the Independent “Britain is also an operational base for two executive jets regularly used by the CIA to carry out so-called “renditions”. One Gulfstream jet—used for taking prisoners to Egypt and Jordan from countries including Sweden and Indonesia—has called regularly at Luton, Glasgow, Prestwick, and Northolt airports. A Boeing 737 jet, used for the transfer of prisoners, passed through Glasgow Airport on Monday morning on its way to Iraq. Both jets are white and unmarked, apart from their US civilian registration. Inquiries suggest they are owned by US companies that exist only on paper and which are almost certainly a front for the CIA.” 26. Submission from Kurdish Human Rights Project KHRP makes the following submissions and recommendations: Enforced Return of Iraqi Asylum Seekers KHRP is concerned that the UK’s current programme of enforced return to Iraq fails to accord with the UK’s obligations under Article 3 of UNCAT. Article 3 states: “1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” In light of the lack of security and widespread human rights abuses in the country, enforced return violates this provision. Ethnic, religious and social tensions continue to abound in Iraq and, despite the January 2005 elections, authorities are not yet able to protect citizens from violent attacks, whilst access to basic services needed for a secure and stable life is not guaranteed. US-led forces have been responsible for gross human rights violations against Iraqi civilians, including excessive use of force, often resulting in deaths, torture or other ill-treatment, long-term detention without charge or trial and arbitrary arrests.361 On 27 September 2005, the UNHCR voiced concerns that the security situation has shown no improvement and has actually deteriorated in many places, and that premature returns to Iraq could worsen tensions between residents and returnees, thereby increasing insecurity.362 According to a recent briefing by Home OYce oYcials,363 the UK will only be returning Iraqi asylum seekers to three of the northern governates—Suleymaniyah, Dohuk and Erbil. Although UNHCR recognises that acts of violence in these areas are far less frequent by comparison with much of the rest of 361 “UK: Forcible Return to Iraq would be unlawful”, Amnesty International news release, 26 August 2005. 362 “UNHCR issues new guidelines on Iraqi Asylum seekers”, News report 27 September 2005, www.unhcr.ch 363 Iraq Community Meeting, 28 September 2005. 3358392042 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 170 Joint Committee on Human Rights: Evidence the country, it only promotes the voluntary return of Iraqis originating from these three governates, and only where the returnees have family and community links that can ensure their access to protection, housing and other basic services.364 Further, killings, revenge-killings and abductions do take place within these areas but they rarely receive media coverage.365 Iraqis whose asylum claims have been dismissed should only be returned when suYcient guarantees are in place to ensure that their return is safe and dignified. Return of Terrorist Suspects to Countries where they are at Risk of Torture KHRP shares the UN Committee Against Torture (the “Committee”)’s concerns that the UK’s reported use of diplomatic assurances in the “refoulement” context are not wholly clear and therefore cannot be assessed for compatibility with Article 3 of UNCAT. This includes whether or not post-return monitoring arrangements are eVective and due process guarantees are followed. KHRP submits that diplomatic assurances cannot provide a mechanism to return people at risk of torture. In case after case, such assurances have been shown to be an ineVective safeguard.366 Torture and ill-treatment are prohibited absolutely under a variety of international human rights conventions.367 A state which enters into a non-binding assurance based on diplomacy alone is extremely unlikely to admit that the assurance has been breached, where to do so constitutes admission of a violation of a fundamental precept of international law. Post-return monitoring has also proven ineVective both in discouraging torture and abuse, and in ensuring accountability.368 KHRP submits that the UK’s declared intention to deport 10 foreign nationals, who were deemed by the Home Secretary in August 2005 to be a threat to national security, to countries where they face a risk of torture or ill treatment, falls foul of the main international human rights standards and fails to address the Committee’s concerns in this respect. Evidence Obtained by Interrogation of Third Parties in Foreign Countries In November 2004, the Committee recommended that the UK should formalise the Government’s intention not to rely on or present in any proceedings evidence where there is knowledge or belief that it has been obtained by torture. The Committee proposed that this intention should be incorporated into legislation or in an undertaking by Parliament. In direct contradiction of the above intention, in August 2004, the Appeal Court ruled that evidence obtained by interrogation of third parties in foreign countries, possibly by torture, could be used at the Belmarsh detainees’ hearings before the Special Immigration Appeals Commission, as long as Britain had not taken part in the torture and did not condone it (A and others v UK, [2004] EWCA 1123). The case is now pending before the House of Lords, due to be heard in mid-October 2005. KHRP agrees with the Committee’s November 2004 recommendations in this regard and submits that the JHRC inquiry should take due consideration of the impending House of Lords judgment. September 2005 27. Submission from the Law Society “Torture is one of the worst human rights abuses. As torture is outlawed under general international law, as well as specific treaties, when governments condone it, they risk losing their legitimacy and provoking terrorism.”369 The Law Society represents and regulates the solicitors’ profession in England and Wales and has a public interest role in working for law reform. It is concerned to see the independence of the legal profession, the rule of law and human rights upheld throughout the world. The Society oVers, below, comments and information on those paragraphs from the Committee against Torture (CAT)’s Subjects of Concern from its consideration of the UK’s report in November 2004370 on which it has a position or has taken action. 364 Ibid. 365 “UK: Forcible Return to Iraq would be unlawful”, Amnesty International news release, 26 August 2005. 366 “UK: Empty promises can’t protect people from torture”, Joint letter to Tony Blair from Human Rights Watch and Liberty, 23 June 2005. 367 These include, inter alia, ICCPR, Article 7; ECHR Article 3; UNCAT. 368 “UK: Empty promises can’t protect people from torture”, Joint letter to Tony Blair from Human Rights Watch and Liberty, 23 June 2005. 369 Human Rights Annual Report 2005, Foreign and Commonwealth OYce at p 194. 370 UN Document CAT/C/CR/33/3 3358392043 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 171 I “[A]rticle 15 of the Convention prohibits the use of evidence gained by torture wherever and by whomever obtained; notwithstanding the State party’s assurance set out in paragraph 3 (g), supra, the State party’s law has been interpreted to exclude the use of evidence extracted by torture only where the State party’s oYcials were complicit.”371 Article 15 of the Convention against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) requires the UK to “ensure” that any statement established to have been made as a result of torture shall not be invoked as evidence in “any proceedings”, except against a person accused of torture as evidence that the statement was made. This is also known as the “exclusionary rule”. In its initial report, the UK described how under statutory and common law a confession which may have been obtained by oppression or under duress is inadmissible in the UK as evidence against the person who made the confession.372 The CAT considered this to be in accordance with the obligations in the Convention. The UK maintained this position in its second and third periodic reports and no further comment was made by the CAT. The CAT has, however, re-examined the UK’s approach to Article 15 in considering the UK’s fourth periodic report. This is in response to the decision of the UK Special Immigration Appeals Commission (SIAC) in the case of A and Others v. Secretary of State for the Home Department, as upheld by the Court of Appeal on 11 August 2004.373 In A & Others, SIAC was asked to consider the admissibility in evidence of statements obtained from third parties by way of torture or inhuman or degrading treatment or punishment when inflicted by agents of a foreign state. After deciding inter alia that Article 15 is not part of UK domestic law, it held that under the common law “the means by which information is obtained goes to its reliability and weight and not to its admissibility”.374 The Court of Appeal upheld the decision and confirmed that, as it stands, UK law does not exclude third party evidence obtained by torture, save where it was obtained by or with the complicity of UK oYcials. The case is being appealed to the House of Lords and is to be heard 17–20 October 2005. It is apparently accepted by the Government that when they receive intelligence from foreign states they “cannot always be sure of the circumstances under which that intelligence was gathered”.375 The CAT conclusions on the UK’s fourth periodic report note that the Secretary of State “does not intend to rely upon or present ‘evidence where there is a knowledge or belief that torture has taken place’”.376 Nonetheless, the Court of Appeal’s interpretation of the status of the exclusionary rule in UK law is shared by the Secretary of State and the Government is contesting the Appellants’ appeal on this point of law in the House of Lords. The status in UK law of the exclusionary rule, as interpreted by the Court of Appeal in A & Others and as stated by the Government, is contrary to the CAT’s views on State parties’ obligations under Article 15, in at least three important ways: (1) Article 15 Applies to any Proceedings Article 15 prohibits the invoking as evidence in “any proceedings” of any statement which is established to have been obtained by torture. The Secretary of State considers that Article 15 is concerned primarily with the use of evidence in criminal proceedings (SIAC proceedings being civil) and accordingly the UK’s periodic reports have been confined to the operation of section 76 of the Police and Criminal Evidence Act 1984 (PACE).377 However, the CAT in its jurisprudence arising from the Convention’s individual complaints procedure has made clear that Article 15 applies to “any proceedings”.378 (2) Article 15 Applies to Statements Obtained by Third States The Secretary of State considers that Article 15 is directed only to the UK’s obligations “within its own jurisdiction” and that it does not require the UK to be concerned to “police the actions of another state”.379 However, according to the CAT the scope of Article 15 extends to whether the statement was obtained by torture carried out by UK oYcials or by the oYcials of foreign States; in the case of the latter, either with or without the complicity of the UK. The CAT has specifically stated that “Statements obtained directly or indirectly under torture should not be admissible as evidence in the courts.” (emphasis added).380 371 Paragraph 4(a) (i) in CAT’s report. 372 CAT/C/9/Add.6, 22 March 1991. The words “under duress” were used by the UK representative in dialogue with the CAT in relation to the UK’s initial report concerning Dependant Territories; see A/48/44, paras 261–283, at 281. 373 Court of Appeal: [2004] EWCA Civ 1123; [2005] 1 WLR 414. 374 SIAC at para 84. 375 FCO Human Rights Annual Report 2005, p190. 376 CAT/C/CR/33/3, 10 December 2004, para 3(g). 377 A and Others, Secretary of State’s Skeleton Argument in the Court of Appeal, para 6.29. 378 See eg G.K. v. Switzerland (CAT 219/2002). 379 A and Others, Secretary of State’s Skeleton Argument in the Court of Appeal, paras 6.18 and 6.20. 380 UN Doc. A/52/44 (1997) (Poland), para 109. See also P.E. v. France (2002) 10 IHRR 421 where the CAT had no hesitation in holding that Article 15 precluded evidence obtained by torture in a third country being used in the court of another country. 3358392043 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 172 Joint Committee on Human Rights: Evidence (3) Article 15 Applies to Statements made by Third Parties In its periodic reports, the UK has stated that “a confession that may have been obtained by oppression is inadmissible in the United Kingdom as evidence against the person who made that confession.” (emphasis added).381 However, Article 15 is broader than that, as it excludes the use of “any statement” obtained by torture, whether against the maker of the statement or against a third party (as alleged in the case of A and Others). The CAT in its concluding observations to State party reports invariably interprets Article 15 as requiring the adoption of “clear legal provisions prohibiting the use as evidence of any statement obtained under torture” (emphasis added).382 The UK’s obligations under Article 15 would therefore be more eVectively met if domestic legislation was adopted corresponding with the UK’s obligations arising from Article 15, as interpreted by the CAT and identified in (1) to (3) above. II “[A]rticle 2 of the Convention provides that no exceptional circumstances whatsoever may be invoked as a justification for torture; the text of Section 134(4) of the Criminal Justice Act however provides for a defence of “lawful authority, justification or excuse” to a charge of oYcial intentional infliction of severe pain or suVering, a defence which is not restricted by the Human Rights Act for conduct outside the State party, where the Human Rights Act does not apply; moreover, the text of section 134(5) of the Criminal Justice Act provides for a defence for conduct that is permitted under foreign law, even if unlawful under the State party’s law.”383 Section 134(4) and (5)—“Lawful Authority,Justification or Excuse” Section 134(4) of the Criminal Justice Act 1988 (CJA 1988) provides a defence to the crime of torture if the person had “lawful authority, justification or excuse”. On the occasion of the UK’s second periodic report, the CAT questioned the UK delegation on the wording of Section 134(4). A CAT member commented: “In relation to the enforcement of article 134 of the Criminal Justice Act 1988, and paragraph 4 in particular, he was of the opinion that there was a contradiction in the text. Article 1 established the principle of the prosecution of torture when it was perpetrated by a public oYcial or person acting in an oYcial capacity, yet paragraph 4 established a dangerous exception by allowing as a defence lawful authority, justification or excuse. That fact appeared to be irreconcilable with article 2, paragraph 2, of the Convention. Was it not time to resolve that contradiction and ensure that the Act was in conformity with the Convention?”384 The CAT’s concern arises because section 134(4) provides a potential defence to torture, whereas Article 2(2) of the Convention provides that “No exceptional circumstances whatsoever…may be invoked as a justification of torture”. In its Concluding Observations to the UK’s third periodic report, the CAT noted under the heading “subjects of concern” that: “Sections 134 (4) and (5) (b) (iii) of the Criminal Justice Act 1988, appear to be in direct conflict with article 2 of the Convention;”385 And under “recommendations”: “The reform of sections 134 (4) and 5 (b) (iii) of the Criminal Justice Act, 1988, to bring them into conformity with the obligations contained in article 2 of the Convention;”386 In response, in its fourth periodic report the UK Government said that in its view sections 134 (4) and 5 (b) (iii) CJA 1988 do not conflict with article 2 of the Convention.387 The Government’s position is that the defence of lawful authority, justification or excuse needs to be considered in the light of: (a) the broader definition of torture in the CJA 1988 as compared to Article 1 of the Convention (b) the Convention defence of pain arising from, inherent in, or incidental to, lawful sanction (art. 1), and (c) the Human Rights Act 1998.388 381 CAT/C/67/Add.2, 27 May 2004, para 278. See also CAT/C/25/Add.6, 26 June 1996, para 128 (second report) and CAT/C/ 44/Add.1, 20 July 1998, para 130 (third report). 382 See eg CAT/C/CR/34/ALB, 21 June 2005 (Albania); CAT/C/CR/31/2, 10 December 2004 (Morocco); CAT/C/CR/31/6, 5 February 2004 (Cameroon); CAT/C/CR/30/2, 27 May 2003 (Cambodia); CAT/C/CR/30/3, 27 May 2003 (Iceland); CAT/C/ CR/30/6, 27 May 2003 (Belgium); CAT/C/CR/28/4, 6 June 2002 (Russian Federation); CAT/C/CR/28/6, 6 June 2002 (Sweden); CAT/C/CR/28/7, 6 June 2002 (Uzbekistan); CAT/C/XXVII/Concl.2, 21 November 2001 (Ukraine); A/56/44, paras 121–129, 17 May 2001 (Kazakhstan); A/56/44, paras 115–120, 16 May 2001 (Brazil); and A/56/44, paras 60–66, 6 December 2000 (Cameroon). 383 Paragraph 4(a)(ii) in CAT’s report. 384 CAT/C/SR.234, 22 November 1995 (Summary record), para 75. Similar concerns were expressed in the House of Commons during the second reading of the Criminal Justice Bill; see the comments of Mr Archer (Warley West) and Mr Menzies Campbell (Fife, North-East), Hansard, OYcial Report 6th Series, Commons Vol. 135 (1987–88), at 622 and 625. 385 A/54/44, para 76(e). 386 A/54/44, para 77(c). 387 CAT/C/67/Add.2, 27 May 2004, para 38, see also paras 39–42. 388 See paras. 39–42 of the UK’s fourth periodic report. 3358392043 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 173 In a nutshell, the definition of torture in the CJA 1988, unlike Article 1 of the Convention, does not contain a requirement that the purpose of the prohibited act be the infliction of severe pain or suVering, rather it only requires that severe pain or suVering be inflicted in the performance of oYcial duties, regardless of its purpose. Therefore, the Government says, the defence of lawful authority, justification or excuse is required to cover the situation where an oYcial incidentally inflicts severe pain or suVering in the performance of duties; such as pain caused during a lawful arrest or suVering resulting from imprisonment. The Government adds that in any event the Human Rights Act 1998 now requires the courts, in accordance with section 6, to interpret the defence of lawful authority, justification or excuse so far as possible in a way that is compatible with article 3 of the ECHR (prohibition of torture). Therefore, the defence of lawful authority, justification or excuse could not be relied on to avoid cases of torture under article 3 ECHR.389 In other words, even if the section 134(4) defence may previously have represented a loop- hole, the Human Rights Act has eVectively closed it. However, during the consideration of the UK’s fourth periodic report, the CAT’s questioning focused on the potential use of the section 134(4) defence in the context of allegations made against UK military personnel in Iraq and whether the UK would consider including a reference in the CJA 1988 stating that “superior orders” were unacceptable as a justification for torture.390 As the CAT points out in its subjects of concern, section 6 Human Rights Act may not restrict the eVect of the lawful authority defence where the conduct takes place outside UK territorial jurisdiction. Hence, in the CAT’s view there is still a potential exception to the crime of torture. Further, section 134(5)(b)(iii) provides that where the pain or suVering is inflicted outside the UK the defence of lawful authority, justification or excuse may be invoked if the relevant foreign law provides lawful authority, justification or excuse for the crime of torture, even if the act would have been unlawful in the UK. This section suVers from similar defects to section 134(4), but, in addition, it is potentially contrary to the UK’s obligations both under treaty law and in general international law. First, in international law the prohibition of torture is absolute and non-derogable.391 Moreover, the prohibition of torture is a peremptory norm of international law, having achieved the status of jus cogens and imposing obligations erga omnes.392 One consequence of this is that all States, regardless of their treaty obligations, have a legal obligation to prohibit torture and to take eVective steps to prevent torture. There is therefore no legitimate set of circumstances where an act of torture (as defined in article 1 of the Convention) could be said to have lawful authority, justification or excuse under the domestic law of a foreign state, as apparently envisaged by section 134(5)(b)(iii). If section 134(5)(b)(iii) is an attempt to mirror the application of section 134(4) in the UK (for the same reasons as given by the UK to the CAT), then it is at least ambiguous and, moreover, it will not necessarily be subject to the same protections as are provided by the Human Rights Act in the UK. Thus, section 134(5)(b)(iii) leaves open a potential exception to the crime of torture where it is committed in a foreign State and the foreign State’s law does not criminalise torture or provides a defence to torture. Second, Article 5(1)(b) of the Convention, in conjunction with Article 4, requires the UK to take measures necessary to establish jurisdiction over acts of torture (including attempted torture and complicity in torture) when the alleged oVender is a UK national, wherever the oVence is committed. In practice, this means that where a foreign State does not prosecute a UK national for the crime of torture committed on its territory, then the UK must ensure that it is able to do so. Thus, if section 134(5)(b)(iii) were to allow a UK national to avoid prosecution due to the lack of an oVence of torture or a potential defence under the foreign State’s law, this would be in conflict with the UK’s legal obligation under Articles 4 and 5 to establish jurisdiction over its own nationals wherever the crime of torture takes place. In conclusion, the UK’s obligations under Article 2 would therefore be moreeVectively met if domestic legislation was adopted giving clarity to the meaning and eVect of sections 134(4) and 134(5). This would avoid the potential for the defence of lawful authority, justification or excuse either (a) being interpreted as a defence of “superior orders”, which would be in contravention of the UK’s obligations under the Convention, or (b) allowing a UK national to avoid prosecution for the crime of torture (as defined in article 1 of the Convention) when committed overseas in circumstances where the law of the foreign state does not criminalise torture or provides a defence to torture. III “[T]he State party’s limited acceptance of the applicability of the Convention to the actions of its forces abroad, in particular its explanation that “those parts of the Convention which are applicable only in respect of territory under the jurisdiction of a State party cannot be applicable in relation to actions of the United 389 See CAT/C/SR.624, 24 November 2004, para 9. See also the UK Government’s comments in its third periodic report, CAT/ C/44/Add.1, 20 July 1998, para 17. 390 CAT/C/SR.624, 24 November 2004, para 38. 391 See eg Article 7 International Covenant on Civil and Political Rights in conjunction with Article 4; and Article 3 European Convention on Human Rights in conjunction with Article 15. 392 See eg R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3) [2000] AC 147 and UN Human Rights Committee General Comment No. 31. Jus cogens status denotes the fundamental, peremptory character of the obligation for all States, regardless of their treaty obligations. Erga omnes status denotes the legal interest of all States in the protection of the relevant right. 3358392043 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 174 Joint Committee on Human Rights: Evidence Kingdom in Afghanistan and Iraq”; the Committee observes that the Convention protections extend to all territories under the jurisdiction of a State party and considers that this principle includes all areas under the de facto eVective control of the State party’s authorities.”393 The Society confirms its agreement with the CAT’s interpretation of Article 2(1) of the treaty: “Each State Party shall take eVective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. IV “[T]he State party’s reported use of diplomatic assurances in the ‘refoulement’ context in circumstances where its minimum standards for such assurances, including eVective post-return monitoring arrangements and appropriate due process guarantees followed, are not wholly clear and thus cannot be assessed for compatibility with article 3 of the Convention.”394 Article 3 of the Convention states: “1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights”. The Society understands that the UK Government is negotiating or has negotiated such diplomatic assurances with Algeria, Egypt, Jordan and Tunisia, all countries where there is a well entrenched pattern of torture and ill-treatment.395 All these states are party to both of the international treaties that absolutely prohibit torture at all times and under all circumstances.396 If the voluntary acceptance of legally binding treaty obligations has failed to halt the pattern of abuse, common sense indicates that diplomatic assurances will be no more successful. The UN Special Rapporteur against torture has emphasised that these states are already obliged “vis-a-vis other States parties (including the United Kingdom) not to resort to torture or ill treatment under any circumstances. Such memoranda of understanding therefore do not provide any additional protection to the deportees”.397 It seems clear that the UK Government accepts that deportees to these countries are at risk of torture or ill-treatment, or there would be no reason for them to seek assurances. That in itself suggests that the UK Government is aware that such deportations might violate its obligations in international law. The UK Government has said that it will seek monitoring mechanisms to ensure that deportees are not subjected to torture or ill-treatment. The Society notes the recent comments of the European Committee for the Prevention of Torture (CPT) on the diYculty of establishing such mechanisms: “While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an eVective and workable mechanism. To have any chance of being eVective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to oVer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.” The question of access is essential: torture and ill-treatment most often occur when the detainee has no access to lawyers or a court. Such abuse flourishes in conditions of secrecy. The Torture Reporting Handbook states that: “Incommunicado detention (ie detaining somebody either without acknowledgement or without allowing them access to anyone, such as their lawyer or family) is probably the single highest risk factor for torture because it means that there is no external monitoring of the interrogation process”.398 It is not easy or straightforward to set up eVective monitoring. According to a recent report in the Financial Times, the government-appointed National Council for Human Rights in Egypt was asked by the UK Government to be the monitoring body for deportees returned to that country. They declined this role. The article quotes a member of the council as saying “We couldn’t give this kind of guarantee. People deported to Egypt will be under the control of the police, and it is diYcult to know if they will be tortured or not”.399 393 Paragraph 4(b) in CAT’s report. 394 Paragraph 4(d) of CAT’s report. 395 See, for example, reports from Amnesty International at www.amnesty.org; Human Rights Watch, www.hrw.org, US State Department Country Reports on Human Rights Practices, http://www.state.gov/g/drl/rls/hrrpt/2004/c14136.htm, 396 The International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 397 “Diplomatic Assurances” not an adequate safeguard for deportees, UN Special Rapporteur against torture warns, 23 August 2005 http://www.unog.ch/unog/website/news—media.nsf/(httpNewsByYear en)/ 3363B5EC0D74CAFFC12570660035F2E9?OpenDocument 398 Camille GiVard, Human Rights Centre, University of Essex, February 2000, at page 17. 399 “Egypt human rights body rejects UK’s extradition proposal”, Financial Times, 21 September 2005, http://news.ft.com/cms/ s/b01695e8-2a3c-11da-b890-00000e2511c8.html 3358392043 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 175 The Society believes that the UK Government should put its energies towards working for the abolition of torture and ill-treatment in countries to which it wishes to deport terrorist suspects. This could become part of the Common and Foreign OYce’s programme of work on the eradication of torture and promotion of the Optional Protocol to the Convention. The Optional Protocol, which is not yet in force,400 has “[t]he objective — to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.”401 Thus working for the acceptance and eVective implementation of the Optional Protocol may well be the most eYcient method of establishing an eVective monitoring mechanism. V “[T]he State party’s resort to potentially indefinite detention under the Anti-terrorism, Crime and Security Act 2001 of foreign nationals suspected of involvement in international terrorism and the strict regime applied in Belmarsh prison.”402 The Society acknowledges that in certain cases the imposition of restrictions on liberty will not necessarily amount to a deprivation of liberty engaging article 5 of the European Convention on Human Rights. However, to argue that this obviates the need for initial judicial control misses the point that severe restrictions, in some cases constituting penal penalties such as tagging or a curfew, will have a significant eVect on the controlled person’s liberty. In other cases, the restrictions listed may, in combination, be so restrictive as to amount to a deprivation of liberty. To argue that such an order may be overturned on appeal, if indeed it does in reality amount to a deprivation of liberty, does not provide the aVected person with an eVective remedy against the initial decision that will have breached their right to liberty. We maintain that the rule of law requires that the initial decision regarding the imposition of all control orders must be made by a judge, not an elected politician. We are not persuaded by the Government’s argument that allowing the Home Secretary to make the initial decision will allow greater speed of decision making. If they concede the power to make derogation orders to judges, which presumably will be required where the subject is considered to present a greater risk, practical arrangements will be in place so that cases can be listed before a judge very quickly. In addition, where reasonable grounds exist to suspect involvement in terrorism, the Terrorism Act 2000 already allows for arrest and detention of the suspect without charge for a period of 14 days. VI “[R]eports of unsatisfactory conditions in the State party’s detention facilities including substantial numbers of deaths in custody, inter-prisoner violence, overcrowding and continued use of “slopping out” sanitation facilities, as well as reports of unacceptable conditions for female detainees in the Hydebank Wood prison, including a lack of gender-sensitive facilities, policies, guarding and medical aid, with male guards alleged to constitute 80% of guarding staV and incidents of inappropriate threats and incidents aVecting female detainees.”403 The Law Society shares the concerns of the CAT and we have previously expressed concern about the number of cases of people who have died in police or prison custody, the failure of the Government to carry out timely investigations into the circumstances of individual deaths and the use of police restraint techniques. According to the organisation INQUEST, in the last 10 years a total of 2,231 men, women and children have died in police and prison custody.404 Many of these deaths raise concerns about inhuman treatment, excessive use of force by law enforcement oYcials and deaths which have resulted from positional asphyxia resulting from restraint. On 26 May 2005, the prison population in England and Wales stood at 76,033, the highest ever recorded figure according to Prison Reform Trust.405 At the end of March 2005, 82 of the 139 prisons in England and Wales were overcrowded. The most overcrowded prison was Leicester which was overcrowded by 86 per cent holding 355 prisoners in accommodation intended for 191. The unsatisfactory conditions in the detention facilities including substantial numbers of deaths in custody, inter-prisoner violence and overcrowding continue to remain. The Society has concerns that the failure to learn the lessons from deaths occurring in diVerent custodial settings and the lack of joined up learning and thinking by the State has resulted in more deaths and the ongoing poor treatment of families. Recently, the Chief Inspector of Prisons has accused the Prison Service of ignoring warnings of possible suicides by women inmates held in “isolated and alienating” conditions within a men’s jail.406 The lack of gender-sensitive facilities continues to remain a concern as female prisoners are guided by the same rules as for men that take no account of the special needs of women. There is no separate management system for 400 The Optional Protocol will come into force when it has been accepted by 20 states. Currently it has 13 state parties: Albania, Argentina, Croatia, Denmark, Georgia, Liberia, Mali, Malta, Mauritius, Mexico, Poland, Sweden and the UK. 401 For the full text of the Optional Protocol see http://www.ohchr.org/english/law/cat-one.htm 402 Paragraph 4(e) in CAT’s report. 403 Paragraph 4(g)in CAT’s report. 404 INQUEST monitoring 1993-date. See: www.inquest.org.uk 405 Prison Reform Trust—Prison Factfile May 2005 http://www.prisonreformtrust.org.uk 406 Reported in The Guardian—Monday 5 September 2005 http://www.guardian.co.uk/prisons/story/0,7369,1562730,00.html 3358392043 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 176 Joint Committee on Human Rights: Evidence women’s prisons and regional managers do not have to have any specialist training or expertise in working with women. Women also tend to place a greater demand on medical services than men. Statistics published by the Howard League for Penal Reform shows that approximately 20% of women prisoners ask to see a doctor or nurse each day, almost twice as many as male prisoners. Over 66% of women in prison were assessed as having neurotic disorders such as depression, anxiety and phobias. The comparable figure in the community is less than 20%.407 The Society has previously expressed particular concern about the lack of gender sensitive facilities in relation to immigration detainees. The Home OYce and the Immigration Appellate Authority have both adopted gender guidelines to deal specifically with the processing of claims made by women and the particular problems they may have in making an application. The Home OYce guidelines state that there may be a number of reasons why a woman may be reluctant to disclose information for example feelings of guilt, shame, concerns about family dishonour. The Society has called for the provision of gender sensitive facilities, including female staV, interpreters and judges to be available on request. VII “[A]llegations and complaints against immigration staV, including complaints of excessive use of force in the removal of denied asylum seekers.”408 The Society is aware of reports of abuse of detainees by immigration staV. Over the years, members of the solicitors’ profession have come across cases of detainees who have been assaulted or mistreated while in detention. Solicitors have also contributed details of cases involving abuse to various organisations researching the issue.409 These cases include allegations of the use of excessive force and the sexual harassment of female detainees. The Law Society has previously expressed serious concerns about the use of detention for asylum seekers. The nature of their situation with a lack of legal status in this country and the possibility of removal leaves them open to abuse. The Society also suspects that the restricted access that detained asylum seekers have to the outside world410 and their potential lack of contacts in this country makes them particularly vulnerable. The perpetrator of an assault has little reason to believe that they will be prosecuted for any oVence. Indeed, as a recent BBC programme, Detention Undercover, showed, when such allegations are made and disciplinary proceedings are brought against the member of staV, it is easy to discredit the detainee’s version of events. In addition, since the Government repealed Part III of the Immigration and Asylum Act 1999, there is no provision for automatic judicial oversight of the decision to detain. If implemented detainees would have had access to an automatic bail hearing. This lack is a serious flaw in the system as, without regular judicial oversight, detaining asylum seekers becomes an administrative process. Claims can be brought on behalf of detainees who complain. Civil actions have been brought on their behalf for damages to compensate them for their treatment. In the recent case of ID, the Court of Appeal confirmed that both the custodian, that is the private contractor, and the authorising authority, the Immigration Service or Secretary of State, could be liable for any civil wrong.411 That case also reaYrmed the need for the policies relied on by detaining authorities to be accessible to those aVected. The Society believes this is a positive development and one to which detainees should have eVective access. However, on-site legal representatives at Oakington Removal Centre are unable to grant the necessary funding under their current contracts. Due to changes in funding in immigration work generally it is becoming increasingly diYcult to find legal representatives, apart from a core of extremely committed practitioners, who are willing to have this work referred to them. Suggested Measures The Society believes that detention should only be used prior to removal and only then for the shortest time possible. This is particularly the case in relation to the detention of families and children. There should be access to properly funded legal advice and representation for all aspects of a detainee’s case including civil claims. A system of automatic bail hearings at regular intervals of detention should be introduced. The Society agrees with the recommendations made in the HM Inspector of Prisons report of the unannounced visit to Oakington in 2004, namely that: 407 http://www.howardleague.org/publications/Women%20in%20Prison.pdf —Howard League for Penal Reform press release 8 March 2005. 408 Paragraph 4(i)in CAT’s report. 409 Harm on Removal, Medical Foundation, 2004 and The use of unlawful force against immigration detainees, Campaign against Racism and Fascism, Stop Arbitrary Detention at Yarl’s Wood and the National Coalition of Anti-Deportation Campaigns, 2005. 410 Internet use is being piloted at two centres. Detainees are given funds to use payphones but incoming calls are diYcult to receive with no pager system operating at Oakington. Detainees held in prison accommodation face similar or worse diYculties. 411 ID and others v the Home OYce [2005] EWCA Civ 38. 3358392043 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 177 1. Race relations policies and procedures must be put in place. Under the Race Relations Act the Society would expect such policies to cover all aspects of detention, including segregation, the “fast tracking” of cases and removal arrangements. They should also be applied eVectively and monitored to ensure they are being applied fairly. 2. A case file should be kept by IND documenting a cumulative history of the period of detention including such details as access to telephones and legal advice. This is obviously good practice and would ensure that proper consideration is given to these aspects of a person’s detention by the immigration staV at the centre. 3. Internet access and improved telephone facilities should be provided. The Society also invites the Government to develop alternatives to the use of detention. Consideration should be given to the suggestion made by Save the Children in their recent research report, “No place for a child”, of a system based on the Appearance Assistance Programme used in the United States and a similar system used in Sweden. These combine freedom from detention with a graduated scale of supervision. This is achieved by assessing individual needs and depends on the provision of information, legal advice and representation from the beginning of the asylum determination process. 29 September 2005 28. Submission from the Redress Trust Introduction 1. These submissions are put forward in response to the call for evidence issued by the Joint Committee on Human Rights in respect of its inquiry into the implementation of the United Nations Convention against Torture and other forms of Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture) in the UK. 2. The Redress Trust (REDRESS) is an international non-governmental organisation with a mandate to ensure respect for the principle that survivors of torture and cruel, inhuman or degrading treatment and punishment, and their family members, have access to adequate and eVective remedies and reparation for their suVering. 3. Since its establishment in December 1992, it has accumulated a wide expertise on the rights of victims of torture both within the United Kingdom and internationally. REDRESS’ recent comparative study on reparation for torture in 31 countries worldwide has been presented for consideration by the United Nations Special Rapporteur on Torture to the United Nations General Assembly. Further it has a successful track record of interventions before regional human rights courts, international criminal courts and human rights treaty mechanisms as well as national courts, in which its expertise on issues relating to the prohibition of torture has been duly recognised.412 4. REDRESS continues to follow closely the UK Government’s commitment to the principles enshrined in the Convention against Torture and submitted comments to the United Nations Committee against Torture on the occasion of its review of the UK’s 4th periodic report.413 All of the issues set out in that submission remain of concern to REDRESS, though they will not be reproduced below. Summary of these Submissions 5. These submissions will focus on three points stemming from the recommendations that the UN Committee against Torture made in response to the UK’s 4th periodic report: 1) The consistency of UK statute and common law with the obligations imposed by the Convention (Example: the UK Government’s stance in the Case of A). 2) The suYciency of investigations into alleged conduct by UK forces, particularly those that reveal possible actions in breach of the Convention, and provide for independent review of the conclusions where appropriate. 3) The failure to make the declaration under article 22 of the Convention. 412 More information on REDRESS’ most recent case submissions can be found on its website at: http://www.redress.org/ case submissions.html. 413 These comments are appended to this submission. They are also available on REDRESS’ website at: http://www.redress.org/ publications/CATRepOct2004.pdf. 3358392044 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 178 Joint Committee on Human Rights: Evidence The Consistency of UK Statute and Common Law with the Obligations Imposed by the Convention; Example: the UK Government’s Stance in the Case of A 6. REDRESS remains concerned that the UK Government has not taken active steps to fully incorporate the Convention against Torture into domestic law. This laissez-faire position continues to result in ambiguity at the domestic level. The continued “confusion” would appear to be a convenient excuse to sidestep international obligations stemming from the Convention against Torture.414 7. The UN Committee against Torture recommended to the UK Government to reflect formally, “such as legislative incorporation or by undertaking to Parliament,” its intention not to rely on or present in any proceeding evidence where there is a knowledge or belief that it has been obtained by torture. REDRESS is not aware of any such formal reflection by the Government. To the contrary, even though any ambiguity that may exist between international treaty obligations and domestic law must be interpreted consistently with the treaty obligations, the UK Government in its policy statements and submissions in the Case of A appears to use this “ambiguity” to argue against the need for it to comply with the international treaty obligation. This is all the more the case when the norms involved have been recognised as jus cogens. 8. It is a well-established principle of international law that: “A state cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for an alleged breach of its obligations under international law.”415 9. This principle was first recognized by the Permanent Court of International Justice and since then, it has been upheld by international jurisprudence.416 The rule clearly establishes that a State may not rely on domestic law to avoid its international obligations. The principle was codified by the International Law Commission in its 1949 Draft Declaration on the Rights and Duties of States.417 Article 13 provides: Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its law as an excuse for failure to perform this duty. [emphasis added] 10. The rule has been given further expression in articles 26 and 27 of the Vienna Convention on the Law of Treaties,418 which stipulate that: 26. Every treaty in force is binding upon the parties to it and must be performed by them in good faith (pacta sunt servanda)” and “27. [a] party may not invoke the provisions of its internal law as a justification for its failure to perform a treaty”.419 11. More recently, the principle has been included in Article 32 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, elaborated and adopted by the International Law Commission (the “ILC Articles”).420 414 A & Others v Secretary of State for Home Department [2004] EWCA 1123. 415 I. Brownlie, Principles of Public International Law, 5th edition, Oxford University Press, Oxford, 1998, p 34. 416 Permanent Court of International Justice (PCIJ): The S. S. Wimbledon (1923), PCIJ, Ser. A, no. 1, p. 29; Mavrommatis, Ser, no. 5; German Interests in Polish Upper Silesia (1926), Ser. A, no. 7, p. 19; Chorzo´w Factory (Merits); (1928), Ser. A, no. 17, pp. 33–34; Jurisdiction of the Courts of Danzig (1928), Ser. B, no. 15, pp. 26–27; Advisory Opinion in the Greco-Bulgarian Communities case (1930) Ser. B, no. 17, p. 32; Free Zones of Upper Savoy and the District of Gex (1932) Ser. A, no. 24, p. 12 and Ser. A/B, no. 46, p. 167, Treatment of polish nationals and other persons of Polish origin or speech in the Danzig territory, (1932) Ser. A/B, no. 44, p. 24. International Court of Justice (ICJ): Fisheries case, ICJ Reports (1951), p. 132; Nottebohm, ICJ Reports (1955), p. 20–21. Arbitral Tribunals: Montijo, Moore, Arbitration, p. 1850; Commission d’arbitrage pour la Commission d’arbitrage pour la Yougoslavie, avis no. 1, 29 November 1991, R.G.D.I.P. 1992, p. 264. See also International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Blaskic, IT-95-14-1, para 7. Alabama Claims arbitration (1872), Moore, Arbitrations, i. 653. 417 G.A. Res. 375 (IV), G.A.O.R., 4th session, Resolutions, p 66 (1949), available at http://www.un.org/law/ilc/texts/decfra.htm D.J. Harris, Cases and materials on International Law, Sweet and Maxwell, 5th edition, p. 71. See also Treatment of Polish nationals and other persons of Polish origin or speech in the Dantzig territory, supra, p. 24; Montijo, supra, p 1850. 418 Vienna Convention on the Law of Treaties, adopted on 22 May 1969, in force 27 January 1980, available at http:// www.un.org/law/ilc/texts/treaties.htm. The VCLT codified the customary international law relating to treaties (see the Programme of Work adopted in 1949 by the International Law Commission, available at http://www.un.org/law/ilc/ progfra.htm were the Law of Treaties was among the fourteen topics selected for codification). 419 Article 27 admits the limited exception of article 46 VCLT relating to the procedure of ratification. The fact that this is the only exception expressly provided would indicate that once a treaty is ratified, the rule knows of no further exception. 420 Draft articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the work of its Fifty-third session, OYcial Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/ 56/10), chapter IV.E.1, available at http://www.un.org/law/ilc/texts/State—responsibility/responsibilityfra.htm . 3358392044 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 179 12. A treaty may also expressly require States to ensure that the treaty provisions have domestic legal eVect. Failure to take the necessary steps to do so may in such circumstances constitute an independent breach of the treaty.421 13. For example, in addition to setting out the specific substantive rights, and after expressly establishing that every State Party must respect and ensure the enshrined rights, the International Covenant on Civil and Political Rights (ICCPR) expressly requires each State Party “to take the necessary steps […] to adopt such legislative or other measures as may be necessary to give eVect to the rights recognized in the present Covenant”.422 The Human Rights Committee, the body primarily charged with interpreting the ICCPR and reviewing State compliance with its provisions, in its General Comment 31 further underlines that [w]here there are inconsistencies between domestic law and the Covenant, article 2 requires that the domestic law or practice be changed to meet the standards imposed by the Covenant’s substantive guarantees.423 14. This is a requirement of substance rather and not just form: what is important is that the domestic legal framework be consistent with, and give eVect to, the rights and requirements of the Covenant.424 15. Article 2 of the UN Convention against Torture similarly expressly requires States Parties to adopt all eVective legislative, administrative, judicial or other measures necessary to prevent torture.425 16. Further, where a treaty or covenant embodies rules that are also rules of customary international law (as is the case with the prohibition of torture), the rules themselves are binding on States as a matter of general international law irrespective of treaty ratification. When such customary international law rules are jus cogens norms, recognized to be of an overriding and non-derogable nature, such as the prohibition of torture, then treaty obligations contrary to these norms are considered null and void. In other words, the only limit to the pact sunt servanda principle stipulating that treaties are binding and must be performed in good faith, are jus cogens norms. 17. Irrespective of the eventual outcome of the House of Lords in the Case of A regarding the status under international law of certain rules contained in the Convention against Torture, it is appropriate for the Government to proceed with the Committee against Torture’s recommendation and to eliminate any “ambiguity” in domestic law with a view to complying fully with the Convention against Torture. The Sufficiency of Investigations into Alleged Conduct by UK Forces,Particularly those that Reveal Possible Actions in Breach of the Convention Against Torture, and Provide for Independent Review of the Conclusions where Appropriate 18. REDRESS followed the Osnabrueck courts martial of soldiers from the 1st Battalion The Royal Regiment of Fusiliers that considered evidence of ill treatment of Iraqi detainees. 19. The trial evidence showed that three soldiers were involved in acts of ill treatment such as beating a detainee, suspending a detainee blindfolded from the prongs of a forklift truck and being implicated in the forcing of two naked prisoners to simulate sexual acts. However, REDRESS notes that none of these soldiers were charged with the crime of torture under section 134 of the Criminal Justice Act 1988. Section 134 of the Criminal Justice Act 1988 defines torture as: “A public oYcial or person acting in an oYcial 421 Human Rights Committee, Concluding Observations, Dominican Republic, 8 April 1993, CCPR/C/79/Add. 18, para 4; Human Rights Committee, Concluding Observations, Ireland, 28 July 1993, CCPR/C/78/Add. 21, para 10; para 137; Human Rights Committee, Concluding Observations, New Zealand, 5 April 1995, CCPR/C/79/Add. 47, para 11; Committee against Torture, Summary record of the 265th meeting, Russian Federation, 27 January 1997, CAT/C/SR.265, para 37 (Chairman); Human Rights Committee, Concluding Observations, New Zealand, 17 July 2002, CCPR/CO/75/NZL, para 8; Human Rights Committee, Concluding Observations, Ireland, 21 July 2000, CCPR/CO/69/IRL, para 432; Human Rights Committee, Concluding Observations, Canada, 6 April 1999, CCPR/C/79/Add. 105, para.10; Human Rights Committee, Concluding Observations, Guatemala, 26 July 2001, CCPR/C/GTM/99/2, para 10; Human Rights Committee, Concluding Observations, Australia, 24 July 2000, A/55/40; Human Rights Committee, Concluding Observations, Kenya, 24 March 2005, CCPR/CO/ 83/KEN; Committee on Economic, Social and Cultural Rights, Report on the Twenty-Eight and Twenty-ninth Session, Ireland, 17 May 2000, para 137 and United Kingdom, 17 May 2002, para 227, E/2003/22, E/C.12/2002/13; Committee against Torture, Concluding Observations, Canada, 6 May 2005, CAT/C/CR/34/CAN, para 5. 422 International Covenant on Civil and Political Rights (ICCPR), adopted G.A. Res. 2200A(XXI),16 Dec. 1966, in force 23 Mar. 1976, article 2(2). 423 Human Rights Committee, General Comment 31, adopted on 29 March 2004, CCPR/C/21/Rev.1/Add.13, para 13. 424 Human Rights Committee, General Comment No 31, supra, para 13. However, direct enforcement by Courts is obviously an acceptable, even preferred, method of giving real domestic eVect to international rights, and a number of recent declarations and works call upon or encourage national courts to enforce international human rights standards directly through their decisions: See The Institute of International Law, Resolution on The Activities of National Judges and the International Relations of their State, Session of Milan, 1993, available at http://www.idi-iil.org/idiE/resolutionsE/1993 mil 01 en.PDF/ ; Bangalore Principles, Developing Human Rights Jurisprudence, available at http://www.thecommonwealth.org/ shared asp files/uploadedfiles/%7BA2407AAC-A477-491D-ABA4-A2CADF227E2B%7D— BANGALORE%20PRINCIPLES.pdf ; International Law Association, Final Report on the Impact of findings of the United Nations Human Rights Treaty Bodies, available at http://www.ila-hq.org/html/layout committee.htm. 425 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, entry into force 26 June 1987. 3358392044 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 180 Joint Committee on Human Rights: Evidence capacity whatever his nationality, commits the oVence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suVering on another in performance or purported performance of his oYcial duties”. This definition is read in light of the definition set out in UN Convention against Torture which defines torture as “any act by which severe pain or suVering, whether physical or mental, is intentionally inflicted on a person for such purposes as … punishing him for an act he or a third person has committed”.426 It would seem from the evidence given at trial that the abuses fall squarely within the definition of torture, and failure to address these abuses as torture not only is an aVront to the victims, but also fails to absolve the Ministry of Defence of its responsibility under the UN Convention against Torture, to eVectively investigate and prosecute all acts of torture. 20. Secondly, the Osnabrueck court martial revealed that a number of other soldiers may have been involved in further acts of ill treatment. Evidence given at the trial reveals that those caught looting were made to run three miles with boxes on their head, and were beaten with sticks as part of “Operation Ali Baba” in order to deter further looting. One of the convicted soldier’s lawyers stated on behalf of his client that “a significant number of other soldiers, including many senior to him, some of whom have been promoted, were involved in the mistreatment of Iraqis that day”.427 To intentionally inflict mental or physical suVering or pain on an individual as part of a punishment amounts to torture and as a result, the UK is under an obligation under the UN Convention against Torture to carryout“apromptandimpartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”.428 A similar obligation is also imposed by article 3 (prohibiting torture) and article 13 (right to a remedy) of the European Convention of Human Rights.429 21. Thirdly, the Osnabrueck court martial identifies the lack of training in the treatment of detainees by British service personnel. It appears from media reports of the trial, that training in the Geneva Conventions was deficient and that no reference was made to other international conventions or standards governing the treatment of detainees. The UK Government provided repeated assurances to the Committee against Torture that “All training programmes for law enforcement personnel, whether civil or military, medical personnel, public oYcials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment continue to emphasize the need to treat everyone as an individual and with humanity and respect and to act within the law at all times” as required by article 10 of the UN Convention against Torture.430 Such training should include not only general information about the prohibition of torture and the safeguards underpinning the prohibition as set out in the Convention against Torture but also the minimum international standards relating to the treatment of detainees such as the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment. REDRESS strongly urges the Government to assess all current operation manuals and training curricula with a view to ensuring that they clearly set out these international standards. 22. On 19 July 2005, the Government announced that several British soldiers who were serving in Iraq are to stand trial under the International Criminal Court Act 2001 following allegations of inhuman treatment including the death of an Iraqi civilian. This follows the ruling of the High Court in December 2004, which recognised that the Government is obliged to conduct an eVective investigation into the death of Baha Moussa, in line with European Convention standards. It may be appropriate for the JCHR to query further the extent to which these proceedings, which the Attorney General has stated are most appropriately heard by Courts Martial, are capable of providing justice to victims and their families in practice. The Failure to make the Declaration under Article 22 of the Convention 23. REDRESS wishes to refer to the written evidence it submitted to the JCHR last year, relating to the Government review of the UK’s international human rights obligations. For the reasons stated in that submission, REDRESS maintains that the Government has failed to take into account the value of the Committee’s decisions for torture victims, but also the important guidance such decisions can give in the absence of the incorporation of the Convention into domestic law, and encourages the Government to make the declaration under article 22. 30 September 2005 426 Article 1 of the Convention. 427 Iraq abuse men “are scapegoats” Lawyers for three British soldiers jailed for abusing Iraqis say the men believe they have been made scapegoats. BBC news 2005/02/25 http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk/4299593.stm 428 Article 12. 429 The High Court has confirmed in the Al-Skeini case that the European Convention of Human Rights applies to British troops in relation to the detention of Iraqi nationals. [2004] EWHC 2911 (Admin). 430 Second periodic reports of States parties due in 1994 : United Kingdom of Great Britain and Northern Ireland. 26/06/96. CAT/C/25/Add.6. 3358392045 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 181 29. Futher submission from the Redress Trust on the alleged use of UK airports in extraordinary renditions Introduction 1. On 30 September 2005 and 14 October 2005, The Redress Trust (REDRESS) put forward submissions to the Joint Committee on Human Rights JCHR) in response to its calls for evidence into the subjects of the implementation of the UNCAT in the United Kingdom and counter-terrorism policy and human rights, respectively. 2. These current submissions are supplementary to the afore-mentioned submissions in respect of the specific issue of allegations that United Kingdom airports have been used by US security aircraft as stopovers in extraordinary renditions, transporting (terrorist) suspects to jurisdictions where they may be tortured, and the implications of this for the UK’s compliance with UNCAT. 3. On 30 November 2005 REDRESS submitted a letter to the Secretary of Transport, requesting that the Government properly investigate the allegations of the UK’s role in “renditions” and “extraordinary renditions” and that it takes steps to prevent any future violations. Background 4. Since the Guardian newspaper ran stories in September 2005431 on what it branded as CIA flights involved in the clandestine transportation of terrorist suspects using UK airports, there has been a flurry of further developments surrounding this and related issues, including the following: further extensive print media and television reports on this alleged practice and matters apparently connected to it such as secret USA detention and interrogation centres in Eastern Europe; questions in Parliament; the creation of an All Party Parliamentary Group on Extraordinary Renditions; enquiries by the UN Special Rapporteur on Human Rights and Counter-terrorism to the UK Government about the flights; the Council of Europe has opened a formal inquiry into the alleged “extraordinary renditions” by the CIA and the role of Council of Europe members in the practice; USA Secretary of State Condoleezza Rice has made statements setting out the oYcial USA position; Foreign Secretary Jack Straw has been questioned by the Commons Foreign AVairs committee. This illustrates how the issue has become one of major and growing public concern over the past three months. 5. The immediate matter of concern to the JCHR is any UK role in the USA’s “rendition” and “extraordinary rendition” programme that could constitute a breach of the UK’s obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). But the JCHR should consider that the matter is currently much more than a USA—UK issue: thus, in assessing the UK’s actions in relation to and in response to these allegations, it should consider the broader debate surrounding the issue of “renditions”. For example, Swiss parliamentarian Dick Marty, who is conducting the Council of Europe inquiry, has criticised the lack of information from Secretary of State Rice during her December 2005 visit to Europe. Leaders of parliamentary delegations to the Parliamentary Assembly will be asked to take initiatives within their parliaments in order to obtain more precise information on this matter. The Committee on Legal AVairs and Human Rights will request that the Bureau of the Assembly include an urgent debate on the issue at the Assembly’s next plenary session (23–27 January 2006.). The German authorities are investigating the abduction of German citizen Khaled Al Masri.432 On 15 November 2005 a Spanish judge announced that he would investigate whether the Son Sant Joan airport in Majorca was used by the CIA to transport detainees. The Norwegian government is said to have asked the US Embassy for information on a plane which landed in Oslo on the 20 July 2005. The Swedish government has asked the civil aviation authorities for full information following that aircraft suspected of belonging to the CIA landed at Swedish airports during the last three years. Swiss authorities are attempting to ascertain whether aircraft chartered by the CIA had violated Swiss sovereignty by landing on several occasions in Geneva during 2003–04. 6. In the course of these developments there have been numerous factual allegations made concerning the use of UK airports and airspace in what are sometimes referred to as “renditions” and sometimes “extraordinary renditions”, including details of some of the aircraft used, destinations, alleged terrorist suspects which could have been on the planes, and other such matters. For example—, frequent reference has been made to a “Gulfstream V” used for “extraordinary renditions” which has visited British airports on several occasions along with a Boeing 737 which was said to have been hired by American agents;433 movements of the Gulfstream V coincided with various incidents of “extraordinary rendition”; aircraft apparently involved in these operations have flown into the UK over 200 times since September 11 2001, involving 19 British airports and RAF bases, in particular, Prestwick, Glasgow;434 the case of Saad lqbal Madni, seized by Indonesian Intelligence Agents on 9 January 2002 and flown by the Gulfstream V to Cairo, 431 The Guardian revelations on 12 and 13 September 2005 were not the first media reports linking CIA flights to UK airports. The UK Sunday Times referred to the link in a report on 14 November 2004. 432 See interview with investigative journalist Stephen Grey which refers to the case, available at http://www.democracynow.org/ article.pl?sid%05/12/07/1519249. 433 Sunday Times November 2004. 434 Guardian 12 and 13 September 2005. 3358392045 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 182 Joint Committee on Human Rights: Evidence is raised, it having been alleged that the aircraft then left Cairo on 15 January 2003, stopping at Prestwick airport before returning to Washington. However, no hard evidence has yet emerged that any particular aircraft carried any particular individual through the UK in the course of “extraordinary rendition.” Summary of these Submissions 7. These submissions will focus on the legality of “renditions” and “extraordinary renditions” under UNCAT. The submissions explain: — The practice of “rendition” and its legality under human rights law. — How “renditions” may involve torture or ill treatment and thus be in breach of UNCAT. — That “renditions” to secret detention centres may constitute the crime of enforced disappearances and may be tantamount to torture or ill treatment. — How the UK has an obligation to ensure that its airspace and airports are not used in connection with practices of “rendition” in possible violation of UNCAT, including transfers to secret or regular detention centres and/or to countries where there are substantial grounds for believing that the individual will be tortured even if there is an arrest warrant or court order against the individual. — That the use of UK airspace and the refuelling in UK airports of flights carrying out “rendition” operations involving torture or ill treatment, is contrary to the UK obligations under UNCAT and might constitute aiding and abetting in torture giving rise to State responsibility and individual criminal responsibility. — That the UK therefore has an obligation under UNCAT to investigate the allegations of “renditions” promptly and impartially. — That the UK is under an obligation to review its existing laws, practices and mechanisms to prevent these acts, and if such allegations are confirmed, to implement eVective guarantees of non- repetition. The Practice of “Renditions” Renditions to justice 8. The United States has long acknowledged the practice of “renditions to justice” as necessary to combat transnational crime. This practice consists of transferring individuals outside legal procedures for prosecution or trial in the US or in other countries through forcible abductions or other forms of irregular renditions such as luring or arbitrary deportations.435 In a recent statement, the US Secretary of State, Condoleezza Rice, acknowledged that the US has been using “renditions” for decades to transport terrorist suspects from the country where they where captured to their home country or to other countries where they can be questioned, held or brought to justice. It is not clear from this statement whether the US considers this practice to be lawful, as it only describes “renditions to justice” as permissible under international law.436 In any case this practice seems to go further to what the US and in some cases US courts, had acknowledged to be within the boundaries of international law.437 9. Even if a “rendition” does not infringe upon the sovereignty of the host State (e g., the abduction is performed with its consent) and is carried out with the purpose of sending the individual to stand trial, it would still constitute an arbitrary detention/expulsion and a breach of the individual’s fair trial rights.438 10. This has been recognised by international courts and human rights bodies. For example, the Inter- American Juridical Committee highlighted the “incompatibility of the practice of extraterritorial abduction with the rights of due process to which every person is entitled, no matter how serious the crime they are accused of, a right protected by international law.”439 435 See Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions” (New York: ABCNY and NYU School of Law, 2004) page 15. See also Extraterritorial Abductions, footnote 1. 436 See footnote 8. 437 See footnote 5. 438 See Transcript: Secretary of State Rice’s Remarks Prior to Departing for European Trip http://www.washingtonpost.com/wp- dyn/content/article/2005/12/05/AR2005120500462 pf.html. The statement by Rice included the following “One of history’s most infamous terrorists, best known as ‘Carlos the Jackal,’ had participated in murders in Europe and the Middle East. He was finally captured in Sudan in 1994. A rendition by the French government brough him to justice in France, where he is now imprisoned. Indeed, the European Commission of Human Rights Rejects Carlos’ claim that his rendition from Sudan was unlawful.” The case to which she referred is Illich Sanchez Ramirez v France, Application No 28780/95, Commission Decision of 24 June 1996. Her assertion that this case is authority for “renditions” being lawful is an over-simplification. The application was “essentially…about the deprivation of [Ramirez’s] liberty by the French authorities” (page 161), the Commission stating that “in so far as the application concerns the circumstances in which the applicant was allegedly deprived of his liberty in the Sudan, it is outwith the jurisdiction of the Commission, ratione personae, since the European Convention on Human Rights does not bind that State, and would, therefore, have to be rejected as being incompatible with the provisions of the Convention.” (ibid). 439 Inter-American Juridical Committee, Legal Opinion Regarding the Decision of the Supreme Court of the United States of America C.J.I./RES/11/15/91. 3358392045 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 183 11. Similarly the European Court of Human Rights (ECtHR) has recognised the principle that all transfers whether described as expulsion, extradition, deportation or otherwise, need to comply with the minimum procedural guarantees prescribed under domestic and international law. In Bozano v France440 the Court determined that legal procedures aVect not only the validity of the transfer but also the legality of holding the individual under detention for the purpose of the removal. 12. Bosnia and Herzegovina’s Human Rights Chamber also analysed the legality of transfers under the European Convention on Human Rights (ECHR) in Bensayah against Bosnia and Herzegovina,441 a case involving the illegal surrender to US custody of a Yemeni terrorist suspect. The Human Rights Chamber explained that Protocols Four and Seven of the ECHR specifically recognise the absolute prohibition of expulsion of nationals (art 3 of the Fourth Protocol) and the prohibition of arbitrary expulsion of aliens that is, expulsions not based on “a decision reached in accordance with the law” (art I of the Seventh Protocol). It concluded, therefore, that if local authorities cooperate with the surrender of an individual(s) to the authorities of another State for the purpose of “rendition”, it is a breach of the ECHR. 13. This view has also been echoed by the UN Human Rights Committee.442 Rendition to interrogations and/or detention and “extraordinary renditions” 14. As described in the Background (above), reports by journalists, non-governmental organisations and international bodies contain credible allegations that the US is conducting an “oV the record” practice of inter-State transfers of terrorist suspects to third countries and/or to secret detention centres outside of US territory where there is substantial likelihood that the detainees may suVer torture or ill treatment. This practice has been labelled “extraordinary renditions”. 15. Regardless of the method employed to transfer individuals (oV or on the record renditions) and the jurisdictions involved, the detention of individuals outside of any legal process is a breach of their right to liberty and to be free from arbitrary detention. Moreover, if the location of the person is kept secret, it can also constitute an enforced disappearance, which is a crime under international law.443 16. As has been established by international courts and human rights bodies, “disappearances” can constitute a form of torture or ill treatment to the victim as well as to his/her family.444 Additionally, it has been widely recognised that disappearances, unoYcial detention centres, arbitary and/or incommunicado detention, not only can constitute torture and ill treatment but also put the individual at high risk of torture or other forms of ill treatment.445 The UK and “Renditions” 17. The UK has an obligation to ensure that its airspace and airports are not used in connection with practices of rendition in possible violation of UNCAT, including transfers to secret detention centres; to other detention centres for the purposes of questioning (ie Guantanamo Bay); or to countries where there are substantial grounds for believing that the individual will be tortured (despite existing arrest warrants or court orders). 440 Bonzano v. France (1986) 9 EHRR 297. 441 Bensayah against Bosnia and Herzegovina (4 April 2003, case no. CH/02/9499). 442 See Cleberti de Caariego v Uruguay Communication No R13/56, 29 July 1981; Lopez v Uruguay Communication No R12/ 52, 29 July 1981; Gury v Dominican Republic, UN Doc CCPR/C/39/D/193/1990, Decision of 20 July 1990. 443 According to the Declaration on the Protection of All Persons from Enforced Disappearance, proclaimed by the General Assembly in its resolution 47/133 of 18 December 1992, an enforced disappearance occurs when “persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by oYcials of diVerent branches or levels of Government, or by organised groups, or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.” Article 7 of the ICC Rome Statute, establishes that widespread or systematic enforced disappearances of persons is a “crime against humanity” and falls withing the jurisdiction of the Court. Rome Statute of the International Criminal Court, U.N. Doc. 2187 U.N.T.S. 90, entered into force 1 July 2002. 444 According to the Working Group on Enforced Disappearances, a “disappearance itself constitutes ipso facto torture or other prohibited ill-treatment. “The very fact of being detained as a disappeared person, isolated from one’s family for a long period is certainly a violation of the right to humane conditions of detention and has been represented to the Group as torture.” (see UN doc. E/CN.4/1983/14, para 131). “Disapperances” are a form of torture as regards the relatives of the “disappeared” person and potentially as regards the “disappeared persons.” See: U.N. Declaration on Enforced Disappearances (Art. I): “Any act of enforced disappearance…constitutes a violation of the rules of international law guaranteeing, inter alia…the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment.” The UN Human Right Committee has taken several decisions on individual petitions which indicate that “disappearances” amount to torture. See: Quinteros v Uruguay, (107/1981, para 4); also El-Megreisi v Libya (Report of the Human Rights Committee, Vol.II, GAOR, 49th Session, Supplement 40 (1994), Annex IX T, paras 2.1–2.5); Mojica v. Dominican Republic (449/1991, para 5.7). See also European Court of Human Rights (Kurt v. Turkey, Eur.Ct.Hum.Rts, Case No.15/1997/799/1002, 25 May 1998, para.134); The Inter-American Court of Human Rights, Vela´squez Rodriguez Case, Judgement of 29 July 1988, Series C No 4, para.187). 445 Idem. 3358392045 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 184 Joint Committee on Human Rights: Evidence UNCAT Prohibits “Renditions”Involving Torture 18. Torture and other cruel, inhuman or degrading treatment or punishment (ill treatment) are prohibited by UNCAT. Article I defines “torture” and although UNCAT does not contain a definition of ill treatment, Article 16 establishes an obligation to prevent it and specifies that: “In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.” These Articles refer to, among others, interrogations rules; the obligation to undertake an eVective investigation; the individual right to complain; and the right to an eVective remedy and adequate reparation. 19. It is important to note that although Article 3 of UNCAT specifically prohibits the expulsion, return or extradition of a person to a State where there are substantial grounds for believing that he/she would be in danger of being subjected to torture (or at risk of subsequent transfer to a risk of torture),446 and does not cover other forms of ill treatment, nonetheless the UK is bound under the International Covenant on Civil and Political Rights (ICCPR)447 and the ECHR448 not to transfer anyone where there is a risk of either torture or ill treatment. UNCAT’s Non-refoulement Obligation and “Renditions” 20. The principle of non-refoulement contained in Article 3 of UNCAT is also a principle under customary international law449 which applies to legal procedures of extradition, deportation or expulsion of individuals from the jurisdiction of one State to another. A breach of this principle gives rise to State responsibility. Mutatis mutandis, all transfers, including those outside legal procedures, need to comply with this principle or otherwise the transferring State would be committing an additional international wrongful act. 21. In this context, it has been suggested that both the sending State and the transit State may be exonerated from liability under international law if diplomatic assurances are obtained from oYcials of the receiving State that persons transferred into their jurisdiction will not be subject to torture or ill treatment. REDRESS has already indicated in its previous submission (dated 14 October 2005) that diplomatic assurances are incapable of ascribing legality to transfers to locations where there is a real risk of torture in violation of the principle of non-refoulement (see Chahal v. United Kingdom (1996) 23 EHRR 413). It would be even more objectionable if such assurances were used to ascribe legality in an extrajudicial transfer, or in a transfer to a secret detention facility. 22. Article 16 of the “Draft articles on Responsibility), of States for internationally wrongful acts” adopted by the International Law Commission (ILC) in 2001 provides: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: a) That State does so with the knowledge of the circumstances of the internationally wrongful act; and b) the act would be internationally wrongful if committed by that State”.450 23. If an oYcial aided or abetted in the perpetration of torture, they may be criminally responsible for the underlying oVence.451 Article 4 of UNCAT requires States to ensure that all forms of torture are oVences under their criminal laws, including all acts that constitute participation in, complicity in, or an attempt to commit torture. Article 5 specifies that States should exercise their criminal jurisdiction even when the acts are committed outside their territory. 446 According to the UN Committee Against Torture, “the Phrase ‘State’ in article 3 refers to the State which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited”—General Comment No. 01: Implementation of article 3 of the Convention in the context of article 22:. 21/11/97.A/53/44, annex IX, CAT General Comment No. 01. (General Comments) 447 The Human Rights Committee has interpreted Articl7 of the ICCOR prohibiting torture and ill treatment as implicitly prohibiting refoulement. See HRC General Comments No. 20 (1990, at H 9), and No. 31 (2004 H 12). For individual communications, see e.g. Chitat Ng v. Canada, (1994, 14.1); Cox v. Canada (1994); G.T. v. Australia (1997). 448 In Soering and in subsequent cases, the ECtHR identified non-refoulement as an “inherent obligation” under Article 3 of the Convention in cases where there is a “real risk of exposure to inhuman or degrading treatment or punishment.” Soering v. UK (1989, H 88). 449 See E. Lauterpacht and D. Bethlehem (2001) An Opinion on the Scope and Content of the Principle of Non-Refoulement, available on the UNHCR website (Global Consultations page, HH 196–216). 450 http://www.un.org/law/ilc/texts/State responsibility/responsibilityfra.htm. 451 See Article 25 (3)(c) of the International Criminal Court Statute and Article 7(1) of the Statute of the International Criminal for the Former Yugoslavia. This provision was interpreted in the Furundzija decision of the ICTY, where it was held that “to be guilty of torture as an aider or abettor, the accused must assist in some way which has substantial eVect on the prepetration of the crime and with knowledge that torture is taking place.” ICTY Furundzija judgment (1998, H 257). 3358392045 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 185 24. J. Burgers and H. Danelius, who were actively involved in the drafting of the UN Convention against Torture, and have written one of the leading commentaries, emphasized: “It is important, in particular, that diVerent forms of complicity or participation are punishable, since the torturer who inflicts pain or suVering often does not act alone, but his act is made possible by support or encouragement which he receives from other persons. In many cases the torturer is merely a tool in the hands of someone else (…) the person or persons who instructed him should also he punished”.452 UNCAT Requires the UK to Investigate Allegations of “Renditions” within its Jurisdiction that Might have Involved Torture or Ill Treatment 25. As stated by Lord Bingham in the recent House of Lords’ decision of A (FC) and Others v Secretary of State for the Home Department UNCAT prohibits torture and ill treatment and establishes an obligation to investigate allegations promptly and impartially.453 26. Credible information suggesting that individuals are being transported by oYcials of another State, via the United Kingdom, to detention facilities for interrogation under torture or are being tortured and ill treated while transported, would imply a breach of UNCAT and must be investigated eVectively. The UK is under an Obligation under UNCAT to Establish Effective Safeguards to Prevent UK Participation in “Renditions”Involving Torture or Ill Treatment 27. Under Article II of UNCAT: “Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.” In other words, the UK should examine whether it has in place suYcient safeguards to prevent acts as have been alleged. 28. In addition to the duty to refrain from committing acts of torture and ill treatment, States have a positive obligation to protect individuals by ensuring that they are not subjected to conduct constituting a violation of international law. This positive duty requires States to investigate allegations of torture that may have occurred on their territory, including allegations of complicity or participation in torture, and to establish guarantees of non repetition.454 29. If an oYcial investigation confirms these allegations, the UK is under an obligation to review its legislation, methods and practice regulating civil aviation (including measures for the identification of flights that might be transporting detainees exposed to the risk of torture or other ill treatment), to make sure that such acts are not repeated. 22 December 2005 30. Submission from The 1990 Trust The 1990 Trust submits this paper for consideration to the Joint Committee on Human Rights (JCHR) on the UK’s compliance to the UN Convention Against Torture (UN CAT), Conclusions and Recommendations, to the UK’s fourth periodic report due on the 6 February 2002—submitted 6 November 2003. The 1990 Trust is a UK based Black455-led human rights organisation focusing on race equality. Established in 1990 to influence policy decisions, the work of the 1990 Trust involves analysing policy from a Black perspective and empowering and enabling local communities to self organise around issues that aVect their daily lives. Our strategic objectives centre on: establishing the principle that racism is a violation of human rights; demonstrating the benefits of African, Asian and Caribbean communities working 452 Burgers and Danelius, supra at p. 130. See also Human Rights Committee, General Comment No. 20, “The prohibition of torture and cruel treatment or punishment (Article 7)”; 10 March 1992, UN Doc. HRI/GEN/1/Rev.7, at Para. 13. 453 A Committee against Torture was established under article 17 of the Torture Convention to monitor compliance by member states. The Committee has recognised a duty of states, if allegations of torture are made, to investigate them: PE v Frances, 19 December 2002, CAT/C/29/D/193/2001, paras 5.3, 6.3; GK v Switzerland, 12 May 2003, CAT/C/30/D/219/2002), para 6.10” A (FC) and Others v. Secretary for the Home Department, [2005] UKHL 71, para 34 (Lord Bingham of Cornhill). 454 As Lord Bingham stated “… the jus cogens erga omnes nature of the prohibition of torture requires member states to do more than eschew the practice of torture.” See footnote 425, para 34 (Lord Bingham of Cornhill). See also UN Basis Principles and Guidelines on the Right to a Remedy and Reparation, General Assembly A/C.3/60/L.24, 24 October 2005. 455 The term Black is used as a generic term in reference to all communities facing racism due to the colour of their skin. We are aware of the popular use of the term referring to African Caribbean communities as well as the use by political activists, which includes African, Asian, and Caribbean communities. 3358392046 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 186 Joint Committee on Human Rights: Evidence together to tackle racial discrimination; and developing ITC solutions that will empower communities and encourage community leadership. Our work seeks to equip local people with the skills, knowledge and confidence to challenge racism and discrimination from a human rights perspective. Introduction The UN CAT forbids all forms of ill treatment across the world. As a signatory to the Convention the UK is obliged to ensure that in all its functions no one under its jurisdiction is aVected by actions of ill treatment by any persons acting as an agent or a representative of the State. However, the UK continues to refuse to make the provisions of the UN CAT fully accessible in UK law. There is however provision under Article 3 of ECHR that goes someway to ensuring that the Convention Articles are somewhat applicable in UK law through ECHR and subsequently the Human Rights Act (HRA). Both the UN CAT and ECHR explicitly state that there is to be no exception, in particular, no exception to the prohibition of ill treatment in times of war or public emergency or unrest. This is a fundamental principle of human rights and therefore the right not to be ill-treated cannot be strayed from. In today’s climate of unrest and the perceived threat of terrorism, to fall foul of one of the “enshrined most fundamental values of a democratic society”456 can never and must never be tolerated in the UK. The 1990 Trust believes that it is important to focus our attention on the treatment of the victim rather than the nature of the punishment to which the individual is subjected. Moreover we believe that the separation between what is considered inhuman and or degrading treatment is not clear. However what is clear is that both scenarios are unacceptable in a democratic society, and so for the purpose of this paper we will focus our attention on the discriminatory, detention, extradition and deportation practices. How UK’s Obligation under UN CAT Could be More Effective The 1990 Trust welcomes the UK’s early ratification to the Optional Protocol in which the Protocol aims to ensure that through regular visits and inspections by independent international or national bodies, that places of detention are adequate and that ill treatment is prevented. The 1990 Trust believes that the government could make the Convention more eVective in protecting the rights of the individual if the UK adopted the following: 1. The full inclusion of the UN CAT into UK law thus eliminating inconsistencies between the Convention and domestic law. For example, in August 2004 the Court of Appeal said the Special Immigration Appeal Commission was not obliged to exclude evidence that had been obtained under torture in another country by a non-UK oYcial. Following on from this, in November 2004, the UN CAT expressed its concerns that the UK law failed to implement fully its obligations under Article 15457. 2. Make a declaration under Article 22 of the UN CAT allowing individual petition to the Committee. This would go a long way in helping to strengthen the powers and credibility of the Convention within the UK at a time of heighten security alert. 3. Provided information on the necessity for the continued emergency powers contained in — Terrorism Act 2000; — Part IV Anti Terrorism, Crime and Security Act 2001; and — the new proposals by the Home Secretary in July 2005 for three new oVences of: Acts preparatory to terrorism, terrorist training and indirect incitement; Condoning, glorifying or justifying terrorism; and the Clampdown on extremism and unacceptable behaviour. 4. Implemented recommendation 5 (g) of the UN CAT Conclusions, which allows for an annual review process for the assessment of the ongoing justification for the emergency powers listed above in point 4. The 1990 Trust believes that this review should be independent of government and should include representatives from across civil society on the review board. 5. The UK should implement recommendation 5 (i) of the UN CAT Conclusions, which states that the UK should submit details on how many cases of extradition they have carried out and that are pending. 6. Deaths in custody—the government should ensure that: — Legal aid is available at Inquests for the families of people who have died in custody. — There is full disclosure of all documents relevant to the death and which must be made available to the victim’s family. — They introduce initiatives to speed up the delays that families of the victims encounter in investigations and inquiries and the delivery of final reports. 7. Abandon it proposed intention to extend its powers to deport and or exclude foreign nationals or those with dual nationality under the new anti terror legislation. 456 European Court of Human Rights. 457 Prevention of Terrorism Bill, JUSTICE Briefing for Commons Second Reading, February 2005. 3358392046 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 187 8. Ensure that all investigations into alleged misconduct of its armed forces are made public. 9. That the proposed Commission for Equality and Human Rights (CEHR) undertakes the monitoring of the Optional Protocol if the monitoring is to be carried out by a national body. This could be carried out under its new powers for ensuring human rights. 10. Lead on the debate on the causes of terrorism. 1990 Trust Views on the Criticism and Recommendations Made by the UN CAT Committee after Consideration of the UK’s Fourth Periodic Report A. One of the Criminal Justice System’s (CJS) main targets to be achieved by 2008 in respect of its Public Sector Agreement is to reassure the public by reducing the fear of crime and to build confidence in the CJS without comprising fairness458. For the government to create a climate of openness, fairness and confidence in the CJS for all sections of Britain’s communities, the issue raised in paragraph 4 (b) of the UN CAT’s Conclusions must be considered as reprehensible, in that the government only wants to apply the Convention Articles at domestic level and not to its armed forces severing abroad. . . . “those parts of the Convention which are applicable only in respect of territory under the jurisdiction of the State party cannot be applicable in relation to actions of the UK in Afghanistan and Iraq”. . .459 It is imperative that the Convention Articles applies both at home and to its armed forces abroad especially in Iraq and Afghanistan if the government is to achieve its targets under the Public Sector Agreement of openness, fairness and confidence especially in relation to Muslim communities. If the government accepts the scope of the Convention then it cannot exclude the actions of its forces abroad form the Articles of the Convention. It is unacceptable for there to be a loophole that excludes the armed forces from being prosecuted if they commit any acts of ill and or degrading treatment. B. The 1990 Trust is further concerned with the UK’s derogation from its obligations under international human rights laws in respect of Part IV of the Anti Terrorism, Crime and Security Act 2001 and Article 3 of ECHR in relation to detention without trial. The 1990 Trust accepts that the UK has a duty to protect its citizens from terrorism, however a fundamental principle of a democratic society is to ensure that the human rights and freedoms for all in its jurisdiction are not taken away and that due process of law is carried out. With those who were detained under anti terror legislation, due process was denied and subsequently deemed discriminatory by the Law Lords. It is with regret therefore that we see the attempted re- introduction of detention without trial under the new proposals being talked about by the Home Secretary. C. The 1990 Trust is greatly concerned with the continued level of deaths in custody. Since the UK’s last submission there has been a further two deaths in police custody: Mikey Powell Died in police custody on 7 September 2003 in Birmingham; and Paul Coker aged 32, who died on 6 August 2005 in Plumstead police station in south London. D. The UN CAT Committee recommended that the UK reassess its extradition mechanisms. What has subsequently happened since the Committee’s recommendation is that the UK has further extended its powers to extradite in relation to people deemed “not to be conducive to the public good”. This will mainly aVect those with dual nationality, and foreign nationals. The 1990 Trust is further concerned by the government’s proposal to deport individuals back to countries where previously there was a threat of torture to that individual. The arrangement is by bilateral agreement with the receiving country providing the receiving country agrees not to ill-treat the deportee. This is unacceptable as the Convention explicitly states that an individual should not be deported to a country where there is a threat of torture. The government must therefore accept and abide by the Convention as it has a moral duty to uphold and protect the individual’s right not to be ill-treated. E. Finally it is generally agreed that UK foreign policy influences domestic situations, for example, the community cohesion and multi-culturalism debate and or agenda. Because of the nature of this, the UK has a moral duty to ensure that all its citizens feel satisfied that foreign policy has no adverse aVect on people from their homelands. The government must therefore instil confidence in all communities, for example by monitoring and making public the actions of its forces, in particular at this present time, in Afghanistan and Iraq. The government must facilitate open debate on this issue in order that we can avoid elements of mistrust on both sides. September 2005 458 Strengthening Society, Improving Opportunity, Home OYce, 2005. 459 UN CAT, Conclusions and recommendations: UK of Great Britain and Northern Ireland—Dependent Territories, 10/12/ 2004, CAT/C/CR/33/3. 3358392047 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 188 Joint Committee on Human Rights: Evidence 31. Submission from Peter Kinderman, Professor of Clinical Psychology, University of Liverpool Psychological Torture The recent UN report on the abuse of detainees in Guantanamo Bay contained a reference to the extensive use of psychological methods amounting to torture and also referred to the role of psychologists and psychiatrists in interrogation techniques. Coercive psychological techniques such as those reportedly used to mistreat detainees at the AbuGhraib prison in Iraq and in GuantanamoBay have been widely reported in a variety of settings, as has the possible involvement of psychological or psychiatric expertise. It is profoundly worrying that such techniques are employed, frightening to observe that they may be becoming more widely used, and important to think of how such abuses may be prevented. UK and US personnel trained in psychological techniques (although not necessarily chartered psychologists) are almost certainly involved in the R2I (resistance to interrogation) programmes taught to British and US military specialists. It is suggested that one key role for psychologists in the R2I programme is to check for the possibility of psychological damage. Psychologists, of course, study all aspects of human behaviour, including coercion and torture. Equally, members of the UK armed forces are likely to be exposed to danger and they should be prepared for that. But there are aspects of the present situation that are deeply troubling. The CIA’s “Human Resource Exploitation Training Manual—1983” was originally obtained under the Freedom of Information Act by the Baltimore Sun in 1997. It lists a wide range of psychological techniques now widely observed in the “war on terror” and well-known from other conflicts internationally. The document is freely available in electronic form from academic libraries in the US, and appears to have benefited from academic psychological input. The New York Times, on June 24, 2005 (“Interrogators Cite Doctors’ Aid at Guantanamo Prison Camp”) cited a number of sources indicating that psychologists or psychiatrists have assisted in what I would call the psychological torture of prisoners. For instance, medical, psychiatric or psychological staV in units known as Behavioral Science Consultation Teams—BSCT or “biscuit” teams—advise interrogators on how to “break” detainees. In addition to the basic techniques of psychological coercion listed in the CIA manual, psychological quirks of the detainees (for example a particular fear of the dark) have apparently been identified and then used strategically by interrogators. It is of note that the US military have apparently defended the right of medical personnel to act in this manner. In addition to the perversion of medical and psychological care that this implies, the apparent increase in the use of psychological techniques of coercion has other worrying features. It seems that the US Government has tried to excuse the CIA and the US military from laws prohibiting the use of torture, and has tried to define torture in a very limited manner that refers explicitly to pain and tissue damage. The US Department of Justice’s Policy Forum has apparently advised the White House that torture “may be justified”. Clearly, such a strategy would have the consequence of encouraging or permitting the use of psychological torture techniques. It is possible that such approaches are also used because, if one has no marks of injury, evidence is lacking. Perhaps, also, such techniques are seen as fitted to a war partially delineated by beliefs. The psychological impact of psychological torture, degradation and abuse is well known. Indeed, the CIA’s own 1983 Human Resource Exploitation Training Manual warns that: “Extreme deprivation of sensory stimuli induces unbearable stress and anxiety and is a form of torture . . . There is a profound moral objection to applying duress beyond the point of irreversible psychological damage”. The forms of psychological abuse reported as occurring in the “war on terror” can be devastating on the mental health of victims. Amnesty International has documented these consequences extensively, and academic mental health workers have commented on the severity of the possible consequences. In the UK, in a diVerent- context, it is possible to achieve a conviction for grievous bodily harm as a result of purely psychological abuse. It is highly likely—as the CIA warns—that hooding, sensory deprivation, sexual humiliation and intense fear will harm the victim. One example given in the recent UN report involves a female interrogator sexually taunting an observant Muslim subject, including removing her clothes, then putting her hand down her knickers and removing what appeared to be menstrual blood, which she then smeared on the subject’s face (it was, in fact, red marker-pen ink). For a Clinical Psychologist, this behaviour is psychological abuse, and is either designed to, or in any case will, harm the individually psychologically. International law is clear. As youand yourCommittee will clearly know, th e Geneva Convention of 1949 bans “physical or mental torture, or any other form of coercion [. . .] threat[s], insult[s], or [. . .] any unpleasant or disadvantageous treatment of any kind”. The United Nations Universal Declaration of Human Rights outlaws “inhuman or degrading treatment or punishment”. Psychological abuse such as that carried out at Guantanamo Bay will not only cause harm, it is illegal. We are all aware of the failure of many Governments to act appropriately to remove the scourge of torture. The prevalence of psychological techniques perhaps warrants particular attention. In addition to protecting people against physical harm, people’s mental well-being must be protected. People must be protected against indefinite detention—itself testified to lead to serious mental health problems. People need 3358392047 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 189 protection from techniques such as routine hooding and sensory deprivation techniques. And people, of course, need protection from the techniques reported by the UN as being used in a variety of international facilities. This requires action by international bodies and Governments as well as professional bodies and non- governmental organisations. Psychologists, including myself; are members of non-governmental organisations active in the area of human rights. Members of our professional bodies (again including me) have attempted to move this debate forward using those avenues. But such avenues often feel blocked. Recent Parliamentary Written Questions submitted by Neil Gerrard MP (Hansard 12 Jul 2004: Column 994W; 179170) asking “whether chartered psychologists have assisted in the past and are assisting the UK armed forces in the use or development of psychological coercive techniques” were replied to by the Minister of State with the statement that “‘Psychological coercive techniques’ is not a term recognised by the United Kingdom armed forces and is therefore not defined in our doctrine. No use is made of such techniques”. Such an answer rather reminds me of Ms Harman’s comment that she did not recognise the term “extraordinary rendition”. In the light of all these concerns, I believe there are a number of issues that may be appropriate for a Parliamentary Committee to pursue: (i) Whether any UK armed forces or security service personnel have been involved in the use of such techniques internationally, (ii) Whether there is any knowledge on the part of UK armed forces or security service personnel in the use of such techniques by our international allies, (iii) Whether any UK courts or tribunals have received evidence that may have been obtained following the use of such techniques. I believe, further, that it would be appropriate for the UK Government to be required, through the legitimate pressure of your Committee, to confirm that such techniques, as they would commonly be understood, constitute a violation of the UN Convention Against Torture. Finally, of course, I believe it would be appropriate for the UK Government to be required, again through the legitimate pressure of your Committee, to press our international allies to behave likewise. I know that your Committee has an enormous remit, but I hope you will understand that the Joint Committee has a unique role and a very high reputation. I wonder, therefore, whether this issue is one that would interest your Committee. 23 March 2006 32. Submission from Michelle Pratley 1. Introduction 1.1 This submission has been prepared in response to the Joint Committee on Human Rights’ call for evidence on the Government’s response to the criticisms and recommendations made by the United Nations Committee Against Torture in its Concluding Observations.460 1.2 The Government is to be congratulated for the positive aspects noted by the Committee Against Torture, in particular, the closure of certain prison facilities previously found to be problematic,461 and the early ratification of the Optional Protocol to the Convention Against Torture.462 1.3 It is, however, deeply regrettable that the Committee Against Torture identified 10 subjects for concern; an unjustifiably high number for a government committed to creating a culture of human rights.463 This submission focuses on two areas of concern identified by the Committee: (i) the Government’s interpretation of the prohibition on the use of evidence gained by torture to exclude circumstances where the torture was perpetrated by agents of a foreign state;464 and (ii) reports that the Government intends to use diplomatic assurances to expel, return or extradite a person to another State where there are substantial grounds for believing that they would be in danger of being subjected to torture.465 460 The Concluding Observations of the Committee Against Torture, CAT/C/CR/33/3, Thirty-third session (2004), United Kingdom of Great Britain and Northern Ireland, are available at 'www.unhchr.ch/tbs/doc.nsf/(Symbol)/ 3bb35be99d933e27c1256f780039b9cb?Opendo cument(. 461 Ibid., para 3(a). 462 Ibid., para 3(i). 463 Jack Straw and Paul Boateng, Bringing Rights Home: Labour’s Plan to Incorporate the ECHR into UK Law (Labour Party 1996). 464 Paragraph 4(a)(i), Concluding Observations of the Committee Against Torture, op. cit. [Postscript: after this submission was completed the House of Lords rejected the Government’s narrow interpretation of the prohibition on the use of evidence obtained through torture (A and others v Secretary of State for the Home Department [2005] 3 WLR 1249).] 465 Paragraph 4(d), Concluding Observations of the Committee Against Torture, op. cit. 3358392048 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 190 Joint Committee on Human Rights: Evidence 2. Summary 2.1 This submission argues that the Government’s response to these two criticisms has been inadequate and urges the Joint Committee on Human Rights to recommend that Parliament enact legislation as a matter of priority to address the subjects of concern identified by the Committee Against Torture. In particular, legislation is necessary to ensure that: (i) where there are substantial grounds for believing that a person would be in danger of being subjected to torture if expelled, returned or extradited to another State, the Government must not do so on the basis of assurances from the foreign State that they will not be tortured; (ii) any statement which is established to have been made as a result of torture may not be invoked as evidence in any proceedings, irrespective of wherever and by whomever the torture is committed, except against a person accused of torture; (iii) the United Kingdom Government may not rely on, or present in any proceeding, evidence where there is knowledge or belief that it has been obtained by torture; and (iv) an individual shall have the right to challenge the legality of any evidence that is plausibly suspected of having been obtained by torture. 2.2 Parliament should also ask the Government to provide details on how many cases of extradition or removal subject to receipt of diplomatic assurances or guarantees have occurred since 11 September 2001, what the Government’s minimum contents are for such assurances or guarantees and what measures of subsequent monitoring it has undertaken in such cases. 3. Compliance with Article 3, Convention Against Torture 3.1 Article 3(1) of the Convention Against Torture provides:466 “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” 3.2 In circumstances where Article 3 would otherwise prevent the expulsion, return or extradition of a person to another State, the Government has sought diplomatic assurances from the foreign government concerned that the person being expelled, returned or extradited will not be subject to torture. The United Kingdom Government has taken the view that obtaining such assurances fulfils its obligations under Article 3. 3.3 Diplomatic assurances were found to be an inadequate protection against torture by the European Court of Human Rights in Chahal v United Kingdom.467 In that case, the United Kingdom Government had obtained assurance from the Government of India that, if returned, Mr Chahal would have no reason to expect to suVer mistreatment of any kind at the hands of the Indian authorities. The European Court of Human Rights did not accept that this assurance would provide Mr Chahal with an adequate guarantee of safety.468 Accordingly, the Court held that the United Kingdom would breach the prohibition on torture contained in the European Convention on Human Rights if it deported Mr Chahal.469 3.4 Despite this decision, in October 2004 the United Kingdom Government responded to criticism of its indefinite detention of suspected terrorists by stating that it had been “exploring the possibility of removing foreign nationals to states where there are fears of [torture or ill treatment] . . . with a view to establishing memoranda of understanding which could provide suYcient safeguards to allow return.”470 3.5 The Concluding Observations of the Committee Against Torture express concern at reports that the United Kingdom Government was seeking such assurances, “in circumstances where its minimum standards for such assurances, including eVective post-return monitoring arrangements and appropriate due process guarantees followed, are not wholly clear and thus cannot be assessed for compatibility with article 3 of the Convention”.471 3.6 The Government has disregarded these concerns. In a speech on 5 August 2005, responding to the incidents that had recently taken place in London, Tony Blair stated that the Government was in the process of obtaining diplomatic assurances from a number of countries:472 “[T]he circumstances of our national security have self evidently changed, and we believe we can get the necessary assurances from the countries to which we will return the deportees, against their being subject to torture or ill treatment contrary to Article 3. We have now concluded a Memorandum of Understanding with Jordan, and we are close to getting necessary assurances 466 Website of the OYce of the High Commission for Human Rights, 'www.unhchr.ch/html/menu 3/b/h—cat39.htm(. 467 Chahal v United Kingdom, (1996) 23 E.H.R.R. 413. 468 Ibid., [37], [105]. 469 Ibid., [107]. 470 Human Rights Watch, “Still at Risk: Assurances No Safeguard Against Torture, Developments Regarding Diplomatic Assurances Since April 2004“”, United Kingdom, April 2005 'http://hrw.org/reports/2005/eca0405/index.htm at 20 April 2005(. 471 Paragraph 4(d), Concluding Observations of the Committee Against Torture, op. cit. 472 Website of 10 Downing Street, 'www.number-10.gov.uk/output/Page8041.asp(. 3358392048 Page Type [O] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Joint Committee on Human Rights: Evidence Ev 191 from other relevant countries. For example, just yesterday I had very constructive conversations with the leaders of Algeria and Lebanon. There are around 10 such countries with whom we are seeking such assurances.” 3.7 Mr Blair asserted that, as a result of the “changed conditions in Britain”, the decision of the European Court in Chahal should be tested anew and, if necessary, the Human Rights Act amended. This would contravene the Convention Against Torture and the European Convention on Human Rights, both of which enshrine the prohibition on torture as a fundamental right from which no derogation is permitted. 3.8 Article 2 of Convention Against Torture provides: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.” 3.9 The European Court of Human Rights has been equally adamant. In May 2005 it stated: “The Court is well aware of the immense diYculties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment...”473 3.10 To avoid breaching the United Kingdom’s international human rights obligations Parliament must refuse to pass any legislation attempting to amend the Human Rights Act in this way. The Joint Committee on Human Rights should call on Parliament to pass legislation to provide that where there are substantial grounds for believing that a person would be in danger of being subjected to torture, the Government must not expel, return or extradite that person to another State, on the basis of assurances from the foreign State that they will not be tortured. 3.11 In addition, Parliament should request that the Government provide details on how many cases of extradition or removal subject to receipt of diplomatic assurances or guarantees have occurred since 11 September 2001, what the Government’s minimum contents are for such assurances or guarantees and what measures of subsequent monitoring it has undertaken in such cases. 4. Compliance with Article 15, Convention Against Torture 4.1 Article 15 of the Convention Against Torture provides:474 “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” 4.2 The United Kingdom Government has argued that Article 15 does not apply to statements which are established to have been made as a result of torture where the torture has been committed by oYcials of a foreign state. This argument was accepted by the Court of Appeal,475 and will be considered by the House of Lords in October 2005. 4.3 The Concluding Observations of the Committee Against Torture reject this argument, stating that the prohibition in Article 15 applies irrespective of “wherever and by whomever [the evidence was] obtained”.476 4.4 The Government has failed to respect the Committee’s elucidation. It will reiterate its argument, that there is no bar on admitted evidence obtained as a result of torture committed by foreign oYcials, before the House of Lords in October 2005. In addition, the Government successfully opposed amendments, proposed during the passage of the Prevention of Terrorism Bill in March 2005, to implement the protection contained in Article 15 into domestic law.477 4.5 The Joint Committee on Human Rights should urge Parliament to pass legislation, in accordance with the recommendations of the Committee Against Torture, to ensure that: (i) any statement that is established to have been made as a result of torture may not be invoked as evidence in any proceedings, irrespective of wherever and by whomever the torture is committed, except against a person accused of torture; (ii) the United Kingdom Government may not rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture; and (iii) an individual shall have the right to challenge the legality of any evidence that is plausibly suspected of having been obtained by torture. 473 Ocalan v Turkey, Application no. 46221/99, European Court of Human Rights, 12 May 2005, at para 179. 474 See Footnote 466. 475 A & Ors v. Secretary of State for the Home Department [2004] EWCA Civ 1123, [2005] 1 W.L.R. 414. 476 Concluding Observations of the Committee Against Torture, note 1 above, para 4(a)(i). Emphasis added. This was predicted by the Joint Committee on Human Rights, who stated that there is a “significant risk of the UK being in breach of its international human rights obligations if SIAC or any other court were to admit evidence which has been obtained by torture”: Review of Counter-terrorism Powers, 18th Report of 2003-2004, HL Paper 158, HC 713; para 29. 477 Amendment 11 proposed in House of Commons debate, Monday, 28 February 2005. See also Amendment No. 28 moved by Lord Thomas of Gresford 'www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds05/text/50308-18.htm(, Hansard, 8 March 2005: Column 678. 3358392048 Page Type [E] 22-05-06 23:13:24 Pag Table: COENEW PPSysB Unit: PAG1 Ev 192 Joint Committee on Human Rights: Evidence 5. Conclusion 5.1 While many of the provisions of the Convention Against Torture have been implemented in domestic legislation, the Committee Against Torture noted that there remained areas where, even after the passage of the Human Rights Act 1998, United Kingdom law is inconsistent with the Convention. 5.2 The most important contribution that Parliament can make to ensuring the United Kingdom complies with its obligations under the Convention Against Torture would be to fully implement the Convention in domestic law. 30 September 2005 Printed in the United Kingdom by The Stationery OYce Limited 5/2006 335839 19585