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| Politics, PR and hack philosophy from A Guy Called Donald. But definitely no blogging. Probably. | |
9.12.05All is not well with the Lords and torture?I'm glad someone is reading these judgments rather than just believing what pops up on Channel 4 News. (Okay, gimme a break, I've been ill.) Brian:The law lords’ judgment on the inadmissibility of evidence obtained by torture, under Bingham’s chairmanship, has added yet more lustre to his record and reputation. It’s not in any way his fault that by a majority of four to three his colleagues insisted, against his advocacy, on imposing a test for determining whether information is likely to have been derived from torture which will almost certainly negate the practical effects of the judgment. In the general euphoria that has greeted the judgment, this seems to have been largely overlooked. He's got a point, one that hinges on the test imposed by the Lords by a 4-3 majority for assessing whether evidence presented to SIAC and elsewhere is admissible: ...the test that should be applied by SIAC must direct its inquiry to what has happened in the past. Is it established, by means of such diligent inquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? If that is the position, article 15 [of the UN Convention Against Torture] requires that the information must be left out... There's definitely a pessimistic interpretation of this. Brian, agreeing with Lord Bingham, envisions British intelligence refusing to run down every scrap of evidence for fear of imperilling relations with foreign security services. The "balance of probabilities" also appears to impose a strict requirement on defence counsel, who will be without any ability to establish where that balance lies. MI5 could claim that a piece of crucial evidence may "possibly" have been obtained via torture, and it still be admitted on the "probability" test. Maybe I'm being naive, but I don't think either is satisfactory for a wriggle. The first, imperilment of inter-intelligence relations, certainly fails the test of practicability imposed by the judgment: "inquiries into the sources that it is practicable to carry out". From the OED: practicable adj. 1 that can be done or used. 2 possible in practice. Practicability, then, is a well-defined and strict requirement that doesn't admit excuses that enquiries might damage relationships with foreign security services. If they can be done, are possible in practice, they are required by the judgment. Second, on the balance of probabilities: I'd have thought it probable that any evidence provided to British intelligence by, say, Karimov's thugs was obtained by torture. In such a case, I suspect defence counsel would find the balance of probabilities in their favour, all other things equal. This obviously needs testing, but if I'm right, the requirement mandated in the 4-3 majority would collapse into the one originally proposed by Lord Bingham: If SIAC is unable to conclude that there is not a real risk that the evidence has been obtained by torture, it should refuse to admit the evidence. Otherwise it should admit it. Perhaps I'm being over-optimistic. Doubtless New Labour's drones will try and wring the most illiberal interpretation possible out of yesterday's ruling. I agree with Brian: another clarification, probably at European level, is likely.
posted by Jarndyce @ 17:13
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