Crucial decisions for detention judges

· Court to rule if control orders rely on coerced evidence
· Lawyers point to use of suspect information in ricin case

Alan Travis and Duncan Campbell, Friday December 9, 2005, http://politics.guardian.co.uk/lords/story/
0,9061,1663275,00.html

Judges on the special immigration appeals court will have to decide early next year whether evidence obtained under torture is involved in up to 30 cases of foreign terror suspects detained in Britain.

The home secretary, Charles Clarke, insisted after the Lords ruling yesterday that his decision to detain 22 of those suspects pending their deportation and a further five placed under control orders does not rely on "coerced evidence". But human rights lawyers insist it has been a factor in the case of Algerians who were acquitted in last year's so-called ricin trial and now facing being deported.

Home Office ministers took some comfort in the fact the ruling did not include the "nightmare option" that they would have to prove "beyond reasonable doubt" no tainted evidence had been used in building the case against the suspects.

Instead, they will have to demonstrate to the judges that "on the balance of probabilities" the evidence involved was not coerced. "It means we will have shown that we made 'as diligent inquiries into the sources of material as is practicable'," said a Home Office spokesman.

Ministers were also pointing to the fact that the judgment specifically covered evidence obtained by torture and excluded witnesses who were suffering inhumane and degrading treatment. This raised the possibility that evidence from those held in Guantánamo Bay might prove admissible although this will be disputed by human rights lawyers.

At the centre of concern over the use of "coerced evidence" is Mohammad Meguerba, a 37-year-old Algerian who had been in an al-Qaida training camp in Afghanistan. He was arrested in London in 2002 as part of an investigation into the funding of terrorist groups. He was released on bail, returned to Algeria, and arrested and detained there.

In England, he had been an associate of Kamel Bourgass, another Algerian, who was jailed for life in April for the murder of Detective Constable Stephen Oake in Manchester and for 17 years for conspiracy to cause a public nuisance through the use of ricin poison. Four other Algerians, Sidali Feddag, David Khalef, Mouloud Sihali and Mustapha Taleb were acquitted of the ricin conspiracy.

It was claimed by lawyers of the defendants that Meguerba had been tortured under detention in Algeria, a country with a reputation for the use of electrodes and beatings to extract information. His relatives claimed he was severely tortured.

His alleged confession, which he claimed was made under torture, led police to led them to Bourgass's home in north London. Lawyers in the ricin trial claimed that any evidence gathered from Megueba should not be admissible and the prosecution said that they had not used any such information because it would have raised the issue of torture.

Algerian authorities have denied that he was mistreated. Some of the acquitted Algerians face deportation. The issue is whether anything said by Meguerba can be used in any review.

In July 2003, in the review of the case of 10 men detained for security reasons, an MI5 expert admitted the security service would use evidence extracted from prisoners tortured abroad. Witness A said: "It is still obviously, speaking theoretically, possible that intelligence provided which may have been obtained in a way that would not be compatible with somebody's human rights could still be assessed to be reliable." All 10 were asylum seekers or refugees held without charge since December 2001 and it was suggested evidence against them could have come from people tortured in Guantánamo Bay or Bagram air base in Afghanistan. The Medical Foundation for the Care of Victims of Torture supported the lawyers. "We see dozens of victims each year from those countries from which most terror suspects originate," said Sherman Carroll. "Little reliance can be placed on the word of a person being tortured."

'Torture is not acceptable'

Extracts from law lords' rulings

Lord Bingham
"The English common law has regarded torture and its fruits with abhorrence for over 500 years ... I am startled, even a little dismayed, at the suggestion (and the acceptance by the court of appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden ... The issue is one of constitutional principle, whether evidence obtained by torturing another human being may lawfully be admitted against a party to proceedings in a British court ... To that question I would give a very clear negative answer."

Lord Nicholls
"Torture is not acceptable. This is a bedrock moral principle in this country. For centuries the common law has set its face against torture ... Torture attracts universal condemnation. No civilised society condones its use. Unhappily, condemnatory words are not always matched by conduct."

Lord Hoffman
"The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it ... Many people in the United States have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal 'rendition' of suspects to countries where they would be tortured. The rejection of torture ... has a special iconic importance as the touchstone of a humane and civilised legal system."

Lord Hope
"Torture is one of most evil practices known to man. Once torture has become acclimatised in a legal system it spreads like an infectious disease, hardening and brutalising those who have become accustomed to its use ... Views as to where the line is to be drawn may differ sharply from state to state. This can be seen from the list of practices authorised for use in Guantánamo Bay by the US authorities, some of which would shock the conscience if they were ever to be authorised for use in our own country.

Lord Rodger
"The revulsion against torture is so deeply ingrained in our law that, in my view, a court could receive statements obtained by its use only where this was authorised by express words, or perhaps the plainest possible implication, in a statute. Here, there are no express words and the provisions approved by parliament do not go so far as to show that the officious bystander who asked whether Siac could rely on a statement obtained by torture would have been testily suppressed with an 'Oh, of course!' from the legislature. I therefore hold that Siac should not take account of statements obtained by torture."

Lord Carswell
"The duty not to countenance the use of torture by admission of evidence so obtained in judicial proceedings must be regarded as paramount and that to allow its admission would shock the conscience, abuse or degrade the proceedings and involve the state in moral defilement."

Lord Brown
"Torture is an unqualified evil. It can never be justified. Rather it must always be punished."