In the early 1990s I worked as a criminal barrister. Every day I defended and prosecuted alleged criminals. In 1996 I left the UK to work in Human rights advocacy in the Balkans and the former soviet union. I was confident that the criminal justice system I came from was an exemplar. After all we had centuries of unbroken experience in balancing the sometimes competing interests of freedom and order. Those centuries, I was convinced had evolved a solid and secure system of safeguards, centred around the primacy of the jury and the independence and competence of the judiciary combined with a well-trained cadre of lawyers and police.
As to torture and ill-treatment. Well, that was a problem that affected other countries. The last officially sanctioned act of judicial torture was in 1640. Even then torture had to be specifically sanctioned by the Kings council. As a jurist, Blackstone, said torture is ‘an engine of state, not of law’.
There had been problems even in the recent past. Excessive trust of the police and an atmosphere of fear of terrorism following bomb attacks in England had given rise to problems concerning unsafe confessions in the 1970s. Alleged Irish terrorists had confessed to crimes they had not committed following threats and beatings, and these e vents had given rise to a highly effective system of preventive measures. This was a problem of the past, I was convinced.
I was aware that, when I was away, the government had compromised the right to jury trial, the right to silence had been effectively removed. These things I knew. They were blips. They would be put right in due course. The ancient freedoms could not be so easily taken by executive power.
Now I am sure you did not come here for an extended discussion of UK criminal procedural history. SO I will come to my point:
The point is this, that even in a country with a strong tradition, judiciary and legal system, serious backsliding can occur.
About two years ago, a friend of mine in the office in which I worked. She asked me whether I had seen the news concerning a judgement of the English Court of Appeal. This judgement, she said, affirmed that a tribunal in the English jurisdiction, the Special immigration appeals court could admit evidence that might have been gained by torture in other countries. I told her that she must be mistaken. That kind of thing could not happen in England. There were ancient rules and traditions.
She was a human rights lawyer, of course, and sadly, tragically to my mind she was right. In due course this travesty was corrected by the final court of appeals in the House of Lords, as one hoped. But what was shocking was that my government could possibly even argue this case. I could not believe it.
And things are not getting any better. Only a month ago I heard a British diplomat, in an international conference in Warsaw, that where there were substantial grounds for believing that someone would be tortured would assurances be sought that a person extradited would not be tortured.
I found this diplomat and asked him the following question ‘Would you hand over one of your subordinates, someone you are responsible for, into the unmonitored hands of someone who had been arrested for serious assault or rape’ No he said. But the standard for arrest is reasonable grounds. It is a lower standard of suspicion than that used by the British government. In other words ‘substantial grounds’ for believing a country tortures is a far higher level of suspicion. So why does the UK government consider it right to send people currently under its protection to places where they are likely to be tortured? He smiled sheepishly, told me he didn’t really believe in this and said he agreed.
How many others who argue these points really believe them?
This audience I am sure knows all this and you may be asking why am I going down this track. There is a vital point in all this.
The point is this, that even in a country with a strong tradition, judiciary and legal system, serious backsliding can occur.
There was , I think in the heady days of the ?90s a presumption that like economic development human rights development is linear. Just as societies get richer, people believe in those systems. It is good for them. They want to get richer still.
We thought did we not that it was the same with freedoms. We enjoy them, we want more of them.
We thought it was a linear progress, as inevitable as the progress of science.
We were wrong. It is a far more chaotic process than that, and this fact is something we are going to have to deal with.
No freedom is more fundamental than the freedom from torture. But we see those who for decades, centuries have protected this freedom sniping against , harassing , knocking holes in this formerly unquestioned right.
Why this is, we have little time to discuss here. We are told we face ?existential threats’ whatever they are. An entirely new kind of opponent. This of course is nonsense. But we are here only to say not what ought to be but accept that this IS the case.
We are failing in something we never thought we would have to do. Explaining that we do not need torture. We do not need to explain why torture is wrong. In the human rights movement there is too much of that kind of discourse. Every torturer knows his acts are illegal and probably wrong, and even if the torturer does not the officer or politician who sanctions it certainly does.
I say again, We are failing though in explaining why we do not NEED torture.
It is not enough merely to declare that we can, for example fight terrorism without transgressing essential freedoms. We must be specific. For what we have here is on a number of levels a failure of intelligence. We need to show HOW we do not need torture or ill-treatment. We need to train and develop in detail. This will require more than human rights lawyers, few of whom have any experience of the harsh reality of life as investigators.
I return to and conclude by looking at the UK experience, this time reflecting positively. Terrorism is not new to us, although the government of the UK seems to have forgotten this. For thirty years and at the cost of 3000 lives we struggled against it. We won in the end, having found that torture and ill-treatment was just about the worst possible way you can do it. We won, if won is the right word, lets agree on solved the problem with the application of intelligence, both in the sense of knowledge, and in the sense of clever application of that knowledge.
We now stand, it seems, to learn those lessons again.
We do not need to explain why torture is wrong. In the human rights movement there is too much of that kind of discourse. Every torturer knows his acts are illegal and probably wrong, and even if the torturer does not, the officer or politician who sanctions it certainly does.
F A Ledwidge- Marrakech, November 2006
United Kingdom
