Not Saussure

November 25, 2006

Torture and technicalities

Filed under: civil liberties, Law, UK, War on Terror — notsaussure @ 5:49 pm

Steven Poole, in Unspeak some weeks ago, was discussing President Bush’s complaint that

the Democrats voted against giving our professionals the tools necessary to protect the American people.

‘An interesting addition here is the concept of the tools,’ commented Mr Poole; ‘Doubtless we are not meant to think of anything so crude as power-drills’. Well…

The BBC reports, of the trial of the seven men accused of conspiracy to cause explosions involving large quantities of fertiliser, that

A defendant in an Old Bailey terror trial broke down in the witness box as he was questioned about claims he was tortured by Pakistani security forces.

Salahuddin Amin said he was forced to make a confession about sending co-defendant Omar Khyam the formula for an explosive device.

He said his interrogators threatened to “drill another hole in his backside”.

His account continues,

He said he gave himself up to the Pakistani security services – the ISI (Inter-Services Intelligence) – in April 2004 on the advice of his uncle, an former brigadier in the Pakistani military.

He said he was taken to an ISI facility in Rawalpindi and held in a small room with bright lights. He said he was beaten with truncheons.

His barrister, Patrick O’Connor QC, said: “Was something else used on you?

He replied: “After a while they told the guards to get a drill machine.”

Mr O’Connor said: “Were you told to do anything?”

“They plugged it in, then it would not work. Then he shouted at the guard. Then he told me to lift my kameez (shirt) up,” Mr Amin said.

Mr O’Connor asked: “Where were you facing?”

“The wall,” he said.

“What did they do?” asked Mr O’Connor.

“(The office) said to (the other man) ‘Drill another hole in his backside’,” he said.

“Did you hear the drill working?” he asked.

“He came to me and he touched me and now I believed it was not the drilling machine because I did not feel pain. But he touched me with something but it must have been his finger or something. I was extremely scared.”

“Did you believe for a moment the drill was going to be used to penetrate into you?”

“Yes,” he replied.

“How did you react to that?”

“I broke down and started crying and I said ‘Sorry, I will agree with everything you want’.”

He said the confessions he subsequently made – and repeated to British police – were false and made under duress.

A co-defendant, Omar Khyam, has previously refused to continue giving evidence in his own defence, despite being warned of the adverse inferences the jury may draw from his silence, claiming that his family back in Pakistan has been intimidated by the ISI there:

In a dramatic development at the beginning of his third day in the witness box, Omar Khyam claimed his family in Pakistan had been intimidated by the ISI secret service and he would not answer any more questions.

His barrister, Joel Bennathan, had just asked how he came to help buy and store half a ton of ammonium nitrate fertiliser, said by the prosecution to be one of the ingredients of a home-made bomb.

Khyam, 24, from Crawley, West Sussex, told him: “Before we go on to that topic, I just want to say the ISI has had a word with my family in Pakistan regarding what I have been saying about them.

“I think they are worried I might end up revealing more about them and right now the priority for me has to be the safety of my family there.

“Much as I might want to go on and clarify matters I am going to stop.” Mr Bennathan asked him what he meant and Khyam added: “I am not going to discuss anything relating to the ISI any more or my evidence.”

I think that ornament of the decent left, Nick Cohen, had in mind asylum seekers being sent abroad, largely on the basis of evidence obtained by duress, to face possible torture or execution when they got there, rather than British citizens allegedly being tortured abroad and then put on trial here with the crown relying on the evidence thus, allegedly, obtained, when he wrote on the subject earlier this month, but the point’s the same. According to Mr Cohen,

Lord Bingham, the senior law lord, said last year that he was ‘startled, even a little dismayed’ that ministers thought they could use evidence in British courts which may have been obtained by torture in the Middle East. Despite his open incredulity, torture will be all over the news in the coming weeks and, as in the Daschner affair, I suspect it is going to be hard to say automatically that what the authorities want to do is wrong.

Obviously, it’s up to the jury what they make of Mr Amin’s account of his treatment at the hands of the Pakistan authorities — he may, of course, have confessed voluntarily and then thought better of it and concocted a monstrous libel on their interrogators in an attempt to justify resiling from his confession. However, the logic of Mr Cohen’s position, it seems to me, is that even if Mr Amin’s account is true, we should still not automatically condemn such ‘tough‘ or unconventional interrogation techniques. Indeed, since a threat’s no use if you’re not prepared to carry it out, at least on one victim pour encourager les autres, presumably Mr Cohen would, doubtless regretfully, conclude that, had Mr Amin remained obdurate, the officer concerned would have had to make good his promise, and pull the trigger on the drill.

And, since I’m sure Mr Cohen is no hypocrite who would have others do what he’s too squeamish to do himself, he would, if necessary, be prepared to insert an electric drill bit up a young man’s anus and turn on the drill himself. Those are the sort of tough-minded and principled decisions that being a member of the decent left involves, you see.

I’m not at all sure, though, that the judges, who notoriously just don’t get it when it comes to ‘the difficulties in obtaining sufficiently cogent admissible evidence for a criminal trial’, will see it that way. I don’t want to comment on a case that’s going on, obviously, and the law on the admissibility of evidence obtained under duress is complex, to say the least. It was the subject of a lengthy House of Lords judgment this time last year. Clearly, the learned judge, Judge Sir Michael Astill, thought the evidence should go in, but I think it’s a reasonable bet that, if any of the defendants are convicted, the question of whether certain evidence should have gone before the jury will be considered by the Court of Appeal.

Now, it’s maybe just my nasty, suspicious mind at work here, but I wonder if this isn’t a sub-text to the planned

legislation which would prevent the Court of Appeal quashing convictions on “technicalities” when the defendants were “plainly guilty”

announced in the Queen’s Speech. Not this specific case, I mean, but the general principle.

The legislation will be based on the consultation paper, Quashing Convictions. At the moment, the Court of Appeal can, in exteme cases, quash a conviction on the grounds that, even though there was nothing wrong with the trial itself, something went so spectacularly badly wrong with the pre-trial procedure that the Court, in effect, wants to register its protest against an abuse of the legal process; ‘for a conviction to be safe,’ they said in R v Mullen (as quoted in Quashing Convictions)

it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe. … But, for the reasons which we have given, we agree with his 1995 conclusion that “unsafe” bears a broad meaning and one which is apt to embrace abuse of process … It follows that, in the highly unusual circumstances of this case, notwithstanding that there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself, this appeal must be allowed and the appellant’s conviction quashed.

Mullen was an IRA bomber who was convicted and sentenced to 30 years for his part in a bomb plot, having been kidnapped from Zimbabwe to face trial — it was apparently feared that if they tried to use the law to extradite him, he’d take the opportunity to escape to his native Republic of Ireland who, at the time, certainly wouldn’t have extradited him.

In that case, to quote from the House of Lords ruling on torture, which also considered the principles raised by Mullen in some detail, the Court of Appeal also said

This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the I.R.A. and other terrorist organisations. In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case. Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts. The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR 104, very considerable weight must be attached

I wonder if one of the motives behind this proposed legislation to prevent the Court of Appeal discouraging such conduct as a blatant and extremely serious failure to adhere to the rule of law (e.g. domestic and international law against torture) isn’t to close the loophole through which a defendant might escape conviction on the technicality he’s been tortured by foreign intelligence services and the Court of Appeal wishes to register a protest against the practice of obtaining evidence by sticking electric drills up people’s backsides.

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