LONDON: There are few better examples of the poison which anti-terrorist laws are capable of leaking into the criminal justice system than the appeal court judgment of 16 months ago.

The issue before the court was whether it was permissible in Britain to use evidence against terror suspects, that may have been obtained by torture in other states. To the alarm of many, the court concluded that although there was no evidence in the case before it that torture had been used, even if there had been evidence of torture, the material gained would still have been admissible as long as Britain had not ‘procured or connived’ at the torture. It was not just domestic human rights groups that were dismayed. Amnesty and other international organizations protested that this ruling by two of the highest judges in Britain sent a shocking signal to the international community. Belatedly but definitively, seven law lords on Thursday unanimously quashed the decision.

The ruling was unequivocal. Lord Bingham, the senior law lord, noted the abhorrence with which ‘torture and its fruits’ had been held in English law for over 500 years. He went on: “I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.”

There was an understandable and almost audible sigh of relief on Thursday from domestic and international human rights groups at this reversal. With good reason. Under international law there is an absolute prohibition on the use of torture. The appeal court had ignored a succession of international treaty obligations, one of which, the European Convention on Human Rights, the UK was instrumental in drafting. The judgment breached both the UN convention against torture and the International Covenant on Civil and Political Rights. It put Britain on a collision course with international human rights campaigners. As Amnesty International noted, the earlier judgment gave ‘a green light for torture’.

All seven judges were agreed that the suspects should not be required to prove the prosecuting evidence was based on torture. As Lord Bingham noted, the 10 foreign suspects, held without charge or trial for two years who brought the appeal, did not know under what evidence or witness statements they were being detained. He went on: “It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet.” The onus would be on the special immigration appeals commission, which issues detention certificates, to scrutinize the prosecution evidence for signs of torture.

There was division among the law lords, however, about the precise level of proof required to rule out evidence derived from torture. The three most senior judges wanted all evidence, where there was even a risk of torture, to be excluded. The other four were less sweeping. They ruled that where there was a probability of torture, evidence would be excluded, but where it was only a possibility, the evidence should be admissible in the interests of national security. —Dawn/The Guardian News Service