[prisoner-rights] CAT 33rd session: Committee hears response of United Kingdom

UNITED NATIONS
Press Release
18 November 2004

The Committee against Torture this afternoon heard the response of the United
Kingdom to questions raised by Committee Experts on the fourth periodic report of
that country on how it was implementing the provisions of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In response to a question on whether the provisions of the Criminal Justice Act of
1988 were deficient in their coverage, the delegation said that the offence in the
1988 Act was cast widely and covered anyone who intentionally inflicted pain or
suffering on another in the performance of their official duties and rejected the
suggestion that possible defences were too wide. There was a defence which simply
reflected the scope of Article 1 of the Convention and did not extend to torture
following 'superior orders'.

Asked about the state of emergency in Northern Ireland, the delegation said the
Government of the United Kingdom was committed under the Belfast Agreement to the
ultimate removal of the temporary Northern Ireland provisions of the Terrorist Act
of 2000, but only when the security situation allowed.

Turning to questions raised on Iraq and Afghanistan, the delegation said British
Armed Forces and military advisers and British public servants who were deployed
with them were subject at all times to English criminal law. The delegation added
that they were also subject to local laws although in many cases there were status
of forces arrangements in place which provided immunity to United Kingdom troops
from local criminal or civil processes. This was the case in both Iraq and
Afghanistan. The delegation made clear, however, that where there was evidence of
any wrongdoing on the part of the United Kingdom Armed Forces, the authorities
investigated and as necessary prosecuted.

Concerning the role of the Prime Minister's Special Envoy on Human Rights to Iraq,
Anne Clwyd, the delegation noted that Ms. Clwyd's principal role was to support the
Iraqi authorities in addressing the human rights abuses committed against the Iraqi
people under the former regime, and in establishing human rights mechanisms for the
promotion and protection of human rights.

On the issue of diplomatic assurances in cases of removal from the United Kingdom,
the delegation said the United Kingdom's use of such mechanisms was in the context
of its commitment to abiding by its international obligations and its policy not to
remove any person to another State where there were substantial grounds for
believing that he or she would be in danger of being subjected to torture.

The Committee will submit its conclusions and recommendations on the report of the
United Kingdom towards the end of the session on 26 November.

As one of the 138 States parties the Convention against Torture, the United Kingdom
is obligated to provide the Committee with periodic reports on the measures it has
undertaken to fight torture.

When the Committee reconvenes at 10:30 a.m. on Friday, 19 November, it will continue
with its consideration of draft guidelines for States parties submitting initial
reports.



Response by Delegation

Concerning the ratification of the Optional Protocol to the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the
delegation recalled that on 26 June 2004, the Foreign Secretary had launched a
worldwide lobbying campaign encouraging other countries to join the United Kingdom
in signing and ratifying the Protocol. The United Kingdom did not propose to
establish any new domestic national monitoring body, as it already had a number of
such bodies in place, including Her Majesty's Inspectorate of Prisons.

The delegation noted that international law did not of itself become part of the
domestic legal order unless Parliament passed a law to that effect. Before it
ratified a treaty, however, the United Kingdom's Government's made sure that its
domestic law, which was a mixture of common law and statute, was consistent with its
international obligations.

As to the Convention against Torture, the United Kingdom had passed section 134 of
the Criminal Justice Act of 1988 in order to create an offence of sufficiently wide
jurisdiction to implement articles 4 and 5 of the Convention. In other respects, the
United Kingdom simply accepted the obligations placed by the Convention on the
United Kingdom Government – which was why no statute was necessary, for example, to
give effect to article 3, or article 12. Moreover, the approach of the United
Kingdom Government was similar to that adopted by a number of other common law
countries with a dualist system. Like the United Kingdom, they had given effect to
the Convention by relying on a variety of common law and statutory provisions. A
delegate added that no "bridging" statute was necessary to give effect to the United
Kingdom's obligations under the Convention against Torture. Also, giving people
access to United Kingdom domestic courts was already achieved in both its criminal
and civil law.

Asked if the provisions of the Criminal Justice Act of 1988 were deficient in their
coverage, the delegation said that the offence in the 1988 Act was cast widely and
covered anyone who intentionally inflicted pain or suffering on another in the
performance of their official duties. The Act provided a defence for a person
charged with an offence of torture to prove that he had lawful authority,
justification or excuse. But the Convention was clearly not intended to cover the
pain lawfully caused by the proper conduct of a medical surgeon. That meant the
surgeon or the prison governor administering ordinary imprisonment, were not
criminalized for their proper and lawful conduct. The delegation rejected the
suggestion that possible defences were too wide.

The delegation continued to say that a defence using the words such as "lawful
authority, justification or excuse" was common in United Kingdom law. The
word "lawful" was weighty and required the authority or excuse to be in accordance
with law; to have the quality of law. In response to a question, the delegation
confirmed that none of the 17 cases in Iraq referred to were dismissed on any such
grounds.

In response to questions raised, the delegation said the Special Immigration Appeals
Commission (SIAC) had emphatically rejected any suggestion that any evidence relied
upon by the Secretary of State was or even may have been obtained by torture – or
indeed by any inhuman or degrading treatment. SIAC's view was confirmed by the Court
of Appeal. SIAC was one of a number of practical, administrative and legal
safeguards providing for detailed scrutiny and review of the Secretary of State's
decision to certify and detain under the ATSC powers.

In response to a question asked as to whether any cases had been brought by British
nationals who claimed to have been tortured abroad, the delegation said one such
case was being contested in the British courts at present. It was a civil case
brought by three British citizens and a Canadian against officers of a foreign
government and against the State itself. The legal hearings this far had been on the
question of whether State Immunity applied and not on whether the alleged acts took
place.

As to why there was no systematic collection of statistics on torture cases brought
under the Human Rights Act, the delegation said the Act for the most part did not
create a set of new rights, or new causes of action. Under the Act, a citizen could
rely on the rights guaranteed by it in any proceedings. Sometimes the case was
obviously a "human rights" case but sometimes the case carried no particular "human
rights" or "torture" label at all. For that reason, the United Kingdom had found it
difficult to categorize or count "human rights" cases.

As to the alleged denial of access of the Northern Ireland Human Rights Commission
to Rathgael Juvenile Justice Centre and Maghaberry Women's Prison (Mourne House)
which was relocated to Hydebank Wood, and the powers of the Commission, the
delegation said that in light of the "intense and focussed review" of Mourne House
Women's Prison in the first half of 2004, and periodic inspections which were due,
the Prison Service had asked the Commission to put off any visit of this sort until
next spring.

In response to a follow up question, the delegation noted that the prison services
in Northern Ireland had improved considerably; according to a recent survey of
female prisoners in Hydebank Wood, the prisoners considered that they felt safer and
had better living conditions.

Asked about the state of emergency in Northern Ireland and the basis on which the
British Government considered the continuation of emergency provisions there to be
justified; the delegation said the Government of the United Kingdom was committed
under the Belfast Agreement to the ultimate removal of the temporary Northern
Ireland provisions of the Terrorist Act of 2000, but only when the security
situation allowed. The delegation noted that levels of violence had decreased in
recent years although some terrorist groups were still active in Northern Ireland
and still retained the capacity and intent to initiate serious widespread violence
and loss of life. Consequently, although the Government was committed to the removal
of Northern Ireland specific counter-terrorism provisions, the current framework was
necessary to counter the assessed threat.

In response to a question, the delegation stated that no baton rounds had been fired
by the police or the army in Northern Ireland since September 2002. However, the
United Kingdom Government was not yet in a position to remove from the police the
option of using baton rounds.

Turning to questions raised on Iraq and Afghanistan, a member of the delegation said
the United Kingdom Armed Forces and military advisers and other United Kingdom
public servants who were deployed with them were subject at all times to English
criminal law. This was the case for conflict and peacekeeping operations and was
independent of which national or international body had authorised operations. The
United Kingdom Armed Forces were also subject to local laws although in many cases
there were status of forces arrangements in place which provided immunity to United
Kingdom troops from local criminal or civil processes. This was the case in both
Iraq and Afghanistan. The delegation made clear, however, that where there was
evidence of any wrongdoing on the part of the United Kingdom Armed Forces, the
authorities investigated and as necessary prosecuted.

As to the obligations of private contractors, the delegation said contractors were
subject to the domestic law of the country in which they were working. Their conduct
might be liable to prosecution under the provisions of the United Kingdom Criminal
Justice Act if they committed acts of torture at the instigation of a public
official because this provision applied to a person regardless of their nationality
and regardless of where in the world they committed the act. Private contractors who
were engaged by the United Kingdom Armed Forces on operations abroad were subjected
to the same legal framework as the United Kingdom Armed Forces operating in that
country.

Asked about what measures were in place to ensure compliance with the Convention in
Iraq, the delegation noted that the Government of the United Kingdom ensured that
individuals were trained appropriately to perform their various functions in
accordance with all relevant legal requirements and those who needed it had access
to legal advice.

Turning to detentions, a member of the delegation said the United Kingdom Government
did not believe that article 3 of the Convention on non-refoulment was applicable to
the transfer of criminal suspects from the United Kingdom physical custody in Iraq
or Afghanistan to the physical custody of either the Iraqi or Afghan authorities,
because the individuals in question were subject to the jurisdiction of either Iraq
or Afghanistan throughout. There was therefore no question of extradition or
expulsion.

As to the transfer of detainees, the delegation said the United Kingdom had
transferred some detainees to United States custody for a period; the United Kingdom
retained responsibility for them as the detaining power in accordance with the
Geneva Conventions and had concluded an agreement with the United States to that
effect.

On the issue of British involvement in United States interrogations, the delegation
noted that all interviews conducted by United Kingdom intelligence personnel, with
one exception, were conducted in a manner consistent with the Geneva Conventions and
with the agreement of the detainee. Where United Kingdom personnel were taking part
in the interviews they were instructed to report if they believed detainees were
being treated in an inhumane way. The exception involved a detainee who was brought
in hooded and shackled by the United States military. The United Kingdom official
understood that the measure was necessary for security reasons and was not part of a
form of duress for interrogation purposes.

Concerning allegations contained in reports from Amnesty International, the
delegation said the United Kingdom Government had published a detailed response to
Amnesty this summer which set out its response to all of the allegations and
recommendations Amnesty had put to it in four reports about Iraq, as they applied to
the United Kingdom Armed Forces.

Regarding the incidence of suicide and self-harm in the United Kingdom Armed Forces
and concerns about bullying, the delegation noted that the incidence of suicides in
the Armed Forces was generally lower than in the United Kingdom general population.
The Army had initiated work to update the guidance and procedures on the prevention
and management of suicide and deliberate self-harm which had been shared with the
Royal Navy and the Royal Air Force. Among other things, a confidential telephone
support line was established in December 1997 that provided fully trained,
confidential, independent and non-judgmental listening and support service to army
personnel and their families.

In response to a series of questions on safe countries and the processing of asylum
claims, the delegation said the position of the United Kingdom law was that a
person's removal in any instance would be a breach of the United Kingdom's
obligations under the ECHR where this would expose them to a real risk of torture or
inhuman or degrading treatment or punishment or where this would lead to a flagrant
breach of other ECHR rights. In any case where it was considered that an asylum
claim was clearly unfounded with the result that only an out-of-country appeal was
possible, it had to be checked by a senior caseworker as well as the caseworker
initially in charge of the claim. Moreover, a person whose claim had been certified
as being clearly unfounded could seek to challenge that certificate in United
Kingdom courts through a process called judicial review with suspensive effect. The
United Kingdom had a policy of not removing unaccompanied children under 18 if they
had no family that could be traced in their country of origin and no adequate
reception and accommodation arrangements existed.

In response to a question, the delegation said the relatively high percentage of
complaints against Immigration Service staff recorded as being substantiated was
largely explained by many complaints raising a number of allegations and a complaint
being recorded as substantiated if just one of them was made out. The delegation
noted that the number of such allegations each year was between 200 and 300 which
was a relatively small figure given the many millions of individuals seen each year
by Immigration Service staff.

The Committee asked several questions on the issue of the Anti-Crime, Terrorism Act
of 2001 (ATCS). As to the state of emergency and whether it fully existed, the
delegation highlighted the threat posed since the events of 11 September 2001 and
referred to the findings of the SIAC and the Court of Appeal. In response to a
question which suggested that the fact that only 17 individuals had been detained
under the ATCS placed in doubt whether a state of emergency truly existed, the
delegation explained that the Home Secretary had undertaken to use these powers
sparingly. They had only been used in a small number of cases where prosecution had
not been possible and where the individuals could not, for the time being, be
removed from the United Kingdom.

In response to a question on the status of independent reviews, the delegation noted
that there had been two separate independent review procedures – one conducted by
Lord Carlile of Berriew on sections 21 to 23 of the ATCS Act; and another which
covered the whole of the Act. These provisions ensured that the ATCS was made
subject to periodic Parliamentary review and renewal. Apart from the independent
review provisions on the face of the Act, Parliament also had the benefit of the
reports published by the Parliament Joint Committee on Human Rights.

As to the question in the context of a letter written by Moazzem Begg, as to whether
material that had been obtained as a result of torture had been used as evidence
before the SIAC; the delegation said SIAC had concluded that there was no material
that had been obtained as a result of torture.

On the subject of monitoring sexual violence in prison, the delegation noted that
this type of monitoring was not specifically carried out in the United Kingdom.
Given the culture of prisons, specific studies could be illustrative, but routine
statistical collection would be unreliable, the delegation added.

Asked about review procedures for determining the continued necessity of solitary
confinement, the delegation said that in Prison Service establishments in England
and Wales, there were three reasons for segregation from the normal prison
community: prisoners under punishment; prisoners isolated for good order and
discipline; and prisoners isolated at their own request. Throughout the United
Kingdom, there were review procedures for prisoners in all these categories.

Concerning the role of the Prime Minister's Special Envoy on Human Rights to Iraq,
Anne Clwyd, the delegation noted that Ms. Clwyd's principal role was to support the
Iraqi authorities in addressing the human rights abuses committed against the Iraqi
people under the former regime, and in establishing human rights mechanisms for the
promotion and protection of human rights. Ms. Clwyd has also taken an interest in
detention issues and has visited the United Kingdom's detention facility at Shaibab
and the United States run facility at Abu Ghraib. At no time did she witness abuse
or mistreatment of detainees at either detention facility, although she raised one
case of alleged mistreatment brought to her attention with the United States
authorities at the highest levels.

The delegation confirmed that the United Kingdom had made representations to the
United States at the highest levels on numerous occasions, most recently in October
2004, when allegations came to light where there may be a question of their
breaching international obligations in Iraq. The United Kingdom had also made
representations to the Iraqi Interim Government about the importance of
investigating all allegations of mistreatment.

A member of the delegation mentioned that she had been serving as the Senior Adviser
to the Iraqi Minister of Human Rights since January 2004. During this time she had
worked with the Iraqi authorities to secure their commitment to sign the Convention
against Torture which had been announced in Geneva in March 2004. She had also
supported the Ministry in gaining a permanent presence at the United States facility
at Abu Ghraib, where a team of Iraqi doctors and lawyers, had unrestricted access to
the detainees.

On the issue of Guantanamo Bay, the delegation said the United Kingdom position was
that it regarded the conditions under which all those detainees who have been held
in Guantanamo as unacceptable. With respect to British detainees, the United Kingdom
Government had raised their cases with the United States Government on a number of
occasions, and called for them either to be tried fairly in accordance with
international standards or to be returned to the United Kingdom. Moreover, British
officials from the Security Service had interviewed a number of detainees in
Guantanamo regarding issues relevant to the United Kingdom's national security. All
United Kingdom personnel were instructed to report immediately any activities
carried out by British personnel or those of any allies with whom the United Kingdom
was operating that came to their attention and that could be seen as torture or
other cruel, inhuman and degrading treatment.

Asked to provide details of cases where British nationals were alleged to have
suffered torture in other States, the delegation noted that the United Kingdom had
no consolidated list of verified cases of torture or ill treatment suffered by
British nationals, nor did it have a list of countries where such acts have been
proven to have occurred.

On the issue of diplomatic assurances in cases of removal from the United Kingdom,
the delegation said the United Kingdom's use of such mechanisms was in the context
of its commitment to abiding by its international obligations and its policy not to
expel, return or extradite any person to another State where there were substantial
grounds for believing that he or she would be in danger of being subjected to
torture. If the United Kingdom Government considered that securing assurances from a
State authority would enable it to remove a person to a country in a manner
consistent with its international obligations, then it believed it was worth trying
to do so.