What use of torture is tolerable? More precisely, what risk that evidence tendered to the court was obtained by torture is tolerable? The House of Lords has answered, if on the balance of probabilities there was no torture, that is acceptable: A v Secretary of State for the Home Department [2005] UKHL 71 (8 December 2005).
This means that a risk of torture, just falling short of tipping the balance, can be ignored. It is notable that this case involved 7 Law Lords, and they split 4-3 on this difficult issue. Of course, they unanimously held torture to be repugnant to the common law. The minority, Lords Bingham, Nicholls and Hoffmann, held that evidence was inadmissible if the court was left with a real risk that it had been obtained by torture.
We should remember that in R v McCuin [1982] 1 NZLR 13 (CA) it was held that statements by accused persons should be excluded unless the court was sure beyond reasonable doubt that they had been made voluntarily.
As we often see in cases considered in this blog over the last 16 months, the choice between formalist and pragmatic reasoning is fundamental. This is illustrated in A’s case by Lord Hope, para 119:
"… it would be unrealistic to … demand that each piece of information be traced back to its ultimate source and the circumstances in which it was obtained investigated so that it could be proved piece by piece, that it was not obtained under torture. The threshold cannot be put that high. Too often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages. Our revulsion against torture, and the wish which we all share to be seen to abhor it, must not be allowed to create an insuperable barrier for those who are doing their honest best to protect us. A balance must be struck between what we would like to achieve and what can actually be achieved in the real world in which we all live. Articles 5(4) and 6(1) of the European Convention, to which Lord Bingham refers in para 62, must be balanced against the right to life that is enshrined in article 2 of the Convention."
Lord Carswell reasoned as follows (para 158):
"After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted … in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases …. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope's view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out."
Reflecting on this case, one is tempted to think that, as the courts have to respond to the difficult issues raised by the State’s responses to terrorism, a law peculiar to the demands of this sort of warfare will develop. It may well be that where public safety is a major consideration, a criterion for admissibility set at the level of the balance of probabilities can be acceptable, whereas in criminal cases of the ordinary kind the McCuin approach will remain appropriate.
Another point, on which laws about terrorism may properly set themselves apart, is the extent to which investigation of crime may be lawful, even though it is based on information obtained through torture. In ordinary criminal cases, the lawfulness of investigatory techniques, such as the use of interception devices, is assessed by ignoring information that had been improperly obtained. For example, if there is insufficient information available to support the granting of an interception warrant once improperly obtained information is ignored, the warrant is invalid: R v Crowe [1996] 3 NZLR 415; (1996) 13 CRNZ 708 (CA). But terrorism raises different values. As Lord Bingham said:
"68. … If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way. Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest.
"69. In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this."
Judicial supervision of executive acts, however, can produce what in A was called a "mismatch" between information properly considered by the executive, and information properly admissible in evidence. While the Law Lords considered this mismatch was an acceptable inevitability (Lord Bingham at para 48 said "The common law is not intolerant of anomaly"), one might wonder how persistent this mismatch will be; this, indeed, is the central question. The law tends to adopt pragmatic compromises, as Lord Bingham pointed out in para 16:
" … there is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement."
On another point, but one that arises from this sort of legislative endorsement of illegal investigatory procedures, Lord Bingham let slip an old fashioned remark. At para 51 he said:
"… it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power … to receive third party torture evidence."
Well, would it? Historical understanding of sovereignty supports this view, but the development of strong international law, with which this case is largely concerned, is incompatible with the notion that Parliament can make any law whatsoever. Further, the implications of Lord Bingham’s remark are that the British people may embrace barbaric behaviour, condemning themselves in the same terms as the Law Lords, and all civilized people, condemn torture.
Similar issues, to those considered in A's case, could arise in New Zealand under the Terrorism Suppression Act 2002, which (to summarise some of its aspects) allows the Prime Minister to use any relevant information to designate as a terrorist any person or organisation (s 30), and which creates offences of involvement with terrorists (s 13). On prosecution, a dispute may arise over the applicability of the definition to a particular person or organisation, and some inquiry into the source of the Prime Minister's information may be necessary: s 39(4) "In determining the proceedings, the Court may take into account any relevant classified security information available to it, even though that information has not been disclosed to or responded to by other parties to the proceedings."
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