UNODC Training course for trial lawyers

1
UNODCTraining course for trial lawyers
International legal instruments, national
legislation and casework practice with regard to
prevention and suppression of torture and other
cruel, inhuman or degrading treatment of suspects
and accused Tashkent, Uzbekistan

• Professor Bill Bowring
• Birkbeck College, University of London
• Trustee since 1992 of the Redress Trust (working
  for reparation for torture survivors)
• Criminalization of torture and ill-treatment
  prosecuting suspected torturers
• Overview of legislation and practice in the
  United Kingdom

2
A bad start

• Ireland v UK (18/01/1978)
• Between January and July 1971 - a dramatic
  upsurge in terrorist activity by the IRA. Police
  statistics record a total of 304 explosions,
  including 94 for the one month of July.
• By 9 August, 13 soldiers, 2 policemen and 16
  civilians had died since the beginning of the
  year. In addition, serious and prolonged rioting
  occurred in both Catholic and Protestant areas.
• On 9 August 1971 the Northern Ireland Government
  brought into operation extrajudicial measures of
  detention and internment of suspected terrorists
  - 3,276 persons

3
A bad start 2

• Five techniques to gain information
• (a) wall-standing forcing the detainees to
  remain for periods of some hours in a "stress
  position", described by those who underwent it as
  being "spread eagled against the wall, with their
  fingers put high above the head against the wall,
  the legs spread apart and the feet back, causing
  them to stand on their toes with the weight of
  the body mainly on the fingers"
• (b) hooding putting a black or navy coloured
  bag over the detainees heads and, at least
  initially, keeping it there all the time except
  during interrogation
• (c) subjection to noise pending their
  interrogations, holding the detainees in a room
  where there was a continuous loud and hissing
  noise
• (d) deprivation of sleep pending their
  interrogations, depriving the detainees of sleep
• (e) deprivation of food and drink subjecting
  the detainees to a reduced diet during their stay
  at the centre and pending interrogations.

4
A bad start 3

• Complaint under Article 2 ECHR
• Commission held that this was torture
• The Court held
• Although the five techniques, as applied in
  combination, undoubtedly amounted to inhuman and
  degrading treatment, although their object was
  the extraction of confessions, the naming of
  others and/or information and although they were
  used systematically, they did not occasion
  suffering of the particular intensity and cruelty
  implied by the word torture as so understood.

5
A bad start 3

• Complaint under Article 2 ECHR
• Commission held that this was torture
• The Court held
• Although the five techniques, as applied in
  combination, undoubtedly amounted to inhuman and
  degrading treatment, although their object was
  the extraction of confessions, the naming of
  others and/or information and although they were
  used systematically, they did not occasion
  suffering of the particular intensity and cruelty
  implied by the word torture as so understood.

6
CAT Reports

• The UK government submitted its Fifth Periodic
  State Report to the CAT Committee in August 2011.
  It is anticipated that the examination will take
  place at the Committees 50th session, due to
  take place in Geneva in May 2013.
• The committee sets a list of issues to be the
  focus of the examination at the session prior to
  it.
• The 49th session is scheduled for 29 October to
  23 November 2012. In order to give the committee
  sufficient time to consider them, it requests
  that shadow reports and other communications be
  submitted at least two months prior to the
  session at which they will be considered.

7
CAT Reports

• The fourth periodic report of the UK was due on
  6 January 2002 and was received on 6 November
  2003. Conclusions and recommendations of the
  Committee against Torture, 10 December 2004
• Concerns
• (i) article 15 of the CAT prohibits the use of
  evidence gained by torture wherever and by
  whomever obtained notwithstanding the UKs
  assurance, the UKs law has been interpreted to
  exclude the use of evidence extracted by torture
  only where the State partys officials were
  complicit and
• (ii) article 2 of the CAT provides that no
  exceptional circumstances whatsoever may be
  invoked as a justification for torture the text
  of Section 134(4) of the CJA 1988 however
  provides for a defence of lawful authority,
  justification or excuse to a charge of official
  intentional infliction of severe pain or
  suffering, 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 CJA provides for a defence for conduct that
  is permitted under foreign law, even if unlawful
  under the UKs law

8
CAT ReportsConcerns

• The fourth periodic report of the UK was due on
  6 January 2002 and was received on 6 November
  2003. Conclusions and recommendations of the
  Committee against Torture, 10 December 2004
• Concerns
• (i) article 15 of the CAT prohibits the use of
  evidence gained by torture wherever and by
  whomever obtained notwithstanding the UKs
  assurance, the UKs law has been interpreted to
  exclude the use of evidence extracted by torture
  only where the State partys officials were
  complicit and
• (ii) article 2 of the CAT provides that no
  exceptional circumstances whatsoever may be
  invoked as a justification for torture the text
  of Section 134(4) of the CJA 1988 however
  provides for a defence of lawful authority,
  justification or excuse to a charge of official
  intentional infliction of severe pain or
  suffering, 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 CJA provides for a defence for conduct that
  is permitted under foreign law, even if unlawful
  under the UKs law

9
CAT ReportsConcerns 2

• The UKs limited acceptance of the applicability
  of the CAT 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 UK in Afghanistan and Iraq the
  Committee observes that the CAT protections
  extend to all territories under the jurisdiction
  of a State party and considers that this
  principle includes all areas under the de facto
  effective control of the UKs authorities
• the UKs reported use of diplomatic assurances in
  the refoulement context in circumstances where
  its minimum standards for such assurances,
  including effective 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
• the UKs 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

10
CAT ReportsConcerns 3

• the investigations carried out by the UK into a
  number of deaths by lethal force arising between
  the entry into force of the CAT in 1988 and the
  Human Rights Act in 2000 which have failed to
  fully meet its international obligations
• reports of unsatisfactory conditions in the UKs
  detention facilities including substantial
  numbers of deaths in custody, inter-prisoner
  violence, overcrowding and continued use of
  slopping out sanitation facilities,
• 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 staff and
  incidents of inappropriate threats and incidents
  affecting female detainees

11
CPT ReportsConcerns 1

• 2009 - Report to the Government of the United
  Kingdom on the visit to the United Kingdom
  carried out by the European Committee for the
  Prevention of Torture and Inhuman or Degrading
  Treatment or Punishment (CPT) from 18 November to
  1 December 2008
• the CPT is concerned to note that little or no
  action has been taken in respect of certain
  recommendations made in previous reports, in
  particular as regards the conditions of detention
  and the legal safeguards against ill-treatment of
  persons held under the Terrorism Act 2000, and
  overcrowding in prisons.
• The CPTs delegation heard no allegations of
  physical ill-treatment of prisoners by staff at
  any of the three prisons visited.

12
CPT ReportsConcerns 2

• The delegation which carried out the 2008 visit
  found that the vast majority of prisoners at
  Manchester, Wandsworth and Woodhill Prisons were
  doubled up in cells of 8.5m² or smaller. The
  cells were equipped with a bunk bed, a table, two
  stools and a shelving unit, and nearly all cells
  possessed a television and a kettle. All cells
  had access to natural light and were adequately
  ventilated and heated.
• However, there was no screening of the toilet and
  basin, placed between the bunk bed and the outer
  wall, in most of the cells visited in the three
  prisons.
• From the information gathered during the visit,
  prisoners spend lengthy periods of time locked in
  their cells.

13
Private prisons

• Prison Reform Trust March 2011
• The decision by the Minister of Justice Kenneth
  Clarke to award the security firm G4S the
  contract to run the 1,400-place Birmingham
  prison, announced in the House of Commons, has
  reignited the debate about the role of the
  private sector in UK prisons.
• The UK already has the most privatised prison
  system in Europe.
• In England and Wales, nearly 10,000 prisoners
  (11.6 of the total prisoner population) are held
  in private prisons. This is a higher proportion
  than in the US, where the figure is around 9.
• The privatisation of HMP Birmingham and the new
  private Featherstone 2 will take the total number
  of private prisons in England and Wales from 11
  to 13, holding up to 14 of the total prison
  population.
• Private prison contracts in England and Wales are
  shared between just three companies Serco,
  Sodexo and G4S. Overall the costs of private
  prisons per place are higher than public prisons
  for most types of establishment. Despite this,
  the average ratio of prison staff to prisoners is
  usually lower in private prisons, and staff
  generally receive a lower level of basic pay than
  their public sector colleagues.

14
The only UK conviction for torture

• On 18 July 2005 the Afghan warlord Faryadi Sarwar
  Zardad (41) was found guilty in the London
  Central Criminal Court (Old Bailey) of conspiring
  to torture and take hostages in Afghanistan in
  the 1990s.
• The following day he was sentenced to twenty
  years imprisonment.
• His appeal was denied on 7 Feb 2007
• Judgment dismissed the defence submission that
  Zardad was not a public official or a person
  acting in an official capacity" in terms of
  Section 134 (1) of the Criminal Justice Act 1988.
  
• Although Zardad was not a de jure public
  official, he was to be treated as a public
  official on a de facto basis.
• Judge examined a considerable amount of
  international material to reach his decision,
  namely the UN CAT decisions in Elmi v Australia
  and HMHI v Australia, as well as the ITCY case of
  Furundzija and the USA case of Kadic v Karadzic.

15
Inquiry into UK role in rendition and torture

• 6 July 2010 - announcement by Prime Minister
  David Cameron of an inquiry into allegations of
  UK involvement in the mistreatment of detainees
  held abroad
• Redress and other NGOs criticise as too weak
• 18 January 2012 - inquiry into the UK's alleged
  role in the torture and rendition of detainees
  after the 9/11 attacks, already boycotted by most
  human rights groups, abandoned by the government.
• Shami Chakrabarti, director of Liberty, said "We
  welcome the sensible decision to end the
  embarrassment of a so-called inquiry in which
  neither torture victims nor human rights
  campaigners had faith."

16
Redress comment on draft UK Fifth Report

• Para 12 of the draft report states the UK must
  be prepared at all times to judge itself
  against the highest international standards
  and to work hard to embed respect for
  international law and respect for human rights
• Why has the UK made no declaration under Art 22
  of CAT to allow complaints?
• What are the police and Crown Prosecution Service
  doing to bring more prosecutions, and why there
  has only been one UK prosecution in the more than
  twenty years since torture was made a crime in
  the UK?
• Why does the UK continue to consider that the
  UNCAT does not apply extra-territorially
  this is contradictory in both law and
  principle, when the UKs highest court found in
  Al Skeini that article 3 of the ECHR does have
  extra-territorial application to detainees held
  in custody by UK personnel anywhere abroad.