Evidence Obtained by Torture: Is it Ever Admissible?

Natasha Simonsen is a graduate student in the Faculty of Law, University of Oxford

Earlier this month, the UK’s Special Immigration Appeals Commission (‘SIAC’) ordered the release from detention of controversial Jordanian-born cleric Abu Qatada. SIAC held that he could not be deported to Jordan, because there was a ‘real risk’ that evidence obtained by torture would be admitted against him in proceedings in Jordanian courts (read the judgment here). The cleric was released on highly restrictive bail conditions on Tuesday of last week, and the scale of public outrage was such that police had to intervene to protect him from protesters outside his home. The Home Secretary may appeal the decision, and there are new rumours that Abu Qatada plans to sue the government for damages for wrongful imprisonment. This post addresses the implications of SIAC’s decision for the exclusionary rule for  evidence obtained by torture.

The Strasbourg Court’s decision

To fully explain the SIAC decision we must return to the European Court of Human Rights’ decision in Abu Qatada v UK from January of this year. To the exasperation ofmany British politicians, including the Prime Minister, in that case the Strasbourg Court held that Abu Qatada could not be deported to Jordan, because the trial that he faced there would likely involve the admission of torture evidence. The two key witnesses against him had been beaten on the soles of their feet to extract confessions—a torture technique known as falanga—and the Jordanian State Security Court was unlikely to exclude such evidence [at 285 in the judgment]. This meant, in the Strasbourg Court’s view, that there was a ‘real risk’ that Abu Qatada would face a flagrantly unfair trial in breach of Article 6 of the Convention. The Court used strong language, stating that that ‘the admission of torture evidence is manifestly contrary, not just to the provisions of Article 6, but to the most basic international standards of a fair trial’ [at 267]. Elsewhere in the judgment, the Court stressed that the exclusionary rule was inextricably bound up with the rule of law [264].

Not all breaches of the Convention occurring in third states will be sufficient to prevent extradition, deportation or expulsion. It is now well established that prospective breaches of Article 3 will have that effect (see Soering, Chahal and Saadi), but breaches of other articles may not. Article 3 is non-derogable, absolute, and is described by the Court as a fundamental value in democratic societies (see, e.g., Soering at [88]). For a breach of one of the qualified, derogable Convention provisions to give rise to a violation by extradition, it must be particularly grave. In Soering, the Court said [at 113] that

‘an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.’

Prior to the Strasbourg Court’s decision in Abu Qatada, however, no case had been found to satisfy that high threshold, even in the 22 years since Soering was handed down. Abu Qatada showed that the threshold is by no means unreachable.

 A second important aspect of the Strasbourg Court’s decision in Abu Qatada v UK was its acceptance of Jordanian diplomatic assurances as mitigating the risk of the applicant being exposed to Article 3 ill-treatment on his return. On previous occasions, the Court has expressed skepticism about the value of diplomatic assurances from torture-endemic states (e.g., Ismoilov v Russia, where the Strasbourg Court refused to accept diplomatic assurances from Uzbekistan because of the systemic nature of torture in that state [at 127]; and the recent decision of Abdulkhakov v Russia, where the Strasbourg Court criticized Russian courts for excessive reliance on Uzbek assurances against torture [at 149]). By contrast, in Abu Qatada v UK the European Court accepted the Jordan-UK Memorandum of Understanding as mitigating the risk of ill-treatment, notwithstanding that Jordan, like Uzbekistan, is a torture-endemic state [192], [205]. The gloss that Abu Qatada added to the position from Ismoilov was that, ‘it will only be in rare cases that the general [human rights] situation in a country will mean that no weight at all can be given to assurances… More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State’s practices they can be relied upon.’ [188]-[189]. Although Uzbekistan may be such a ‘rare case’, where torture is so prolific that assurances will never be enough to mitigate the risk of ill-treatment, it is clear from the Court’s decision in Abu Qatada that Jordan is not.

The Strasbourg Court’s decision in Abu Qatada met with outrage and controversy, and the Home Secretary Theresa May went about securing more assurances from Jordan, with respect to the exclusion of torture evidence in any subsequent trial that he might face. The Home Secretary’s mistaken calculation of the date upon which the Strasbourg Court’s decision became final contributed to the general perception that the Home Department had mishandled the case, even though it was ultimately not significant to the outcome. The new assurances from Jordan with respect to the conduct of Abu Qatada’s retrial were litigated before SIAC, leading to the decision handed down last week.

The SIAC decision

The Secretary of State’s accepted the decision of the Strasbourg Court and premised her submissions to SIAC upon that decision. However, Jordan had refused to give a blanket guarantee that torture evidence would not be admitted against the applicant. The Jordanian authorities did, however, provide additional promises that:

• Abu Qatada’s retrial in Jordanian State Security Court would be conducted by three civilian judges, not military judges [45];
• the Jordanian secret police (notorious for torturing its prisoners) would have nothing to do with the pre-trial process, and according to SIAC, ‘for reasons set out in the closed judgment, we are satisfied that the GID would not seek to influence a retrial by backstairs means’ [at 48].

In addition, there was evidence before SIAC that:

• there had been two amendments to Jordanian law, one in the Penal Code and one in the Constitution, which arguably made it easier to challenge evidence obtained by torture (though there was considerable debate about the effect, if any, of those amendments [at 71-72]);
• a number of Jordanian defence lawyers surveyed by the British Embassy considered that the integrity of the State Security Court had improved somewhat in recent years [46]; and
• that at least two judges eligible to sit in the State Security Court ‘wanted to bring Jordanian law to another level or layer of international standards and to change the way the world was looking at Jordan’. This, in SIAC’s view, ‘illustrates that the Jordanian judiciary, like their executive counterparts, are determined to ensure that [Abu Qatada] will receive, and will be seen to receive, a fair retrial’ [47].

In light of these assurances and evidence available, SIAC said that if the only question they had to determine was whether or not the trial would be ‘flagrantly unfair’, then their ‘unhesitating’ answer would be ‘no’ [49]. To SIAC’s apparent regret, that was not the only question they were faced with. Because the Strasbourg Court had said, in Abu Qatada v UK, that a ‘real risk’ of the admission of torture evidence will always render a trial flagrantly unfair, that was the question before SIAC. To answer it, SIAC had to ‘analyse Jordanian law and to attempt to forecast how it would be applied by the three civilian judges in the [Jordanian] State Security Court’ [49].  The SIAC panel seemed to resent being asked to predict the likely outcome on this contentious point of Jordanian law; this may be read as an implied criticism of the Strasbourg Court, whose reasoning had forced them into that bind. Evidence from a number of Jordanian legal practitioners flatly contradicted the evidence given by the Attorney General of the State Security Court on the very same question: whether the prior statements of the witnesses who had allegedly been tortured were admissible [57]. SIAC was unable to resolve the tension between those views, stating that ‘unless we can be confident that the court would not admit the impugned statements… the answer must be negative’ [66]. To satisfy them on that point, SIAC would have required a further change in the Code of Criminal Procedure, or an authoritative ruling from Jordanian courts, on either or both of the following propositions: that (1) the burden of proof to establish that evidence was not obtained by torture lay with the prosecutor; and/or (2) statements made to prosecutors by accomplices who are no longer subject to criminal proceedings are not admissible (since the two witnesses in question were at one stage co-defendants in the proceedings with Abu Qatada) [78].

Implications of the decision

SIAC’s decision has generated hysteria from some of the usual media sources as well as some interesting and insightful commentary. Abu Qatada has now been released on bail, after ten years of on-and-off detention, although the Secretary of State is likely to consider an appeal. Notwithstanding this, the decision is an important contribution to the developing area of law regarding the exclusionary evidential rule. The vexed question of whether and in what circumstances evidence obtained by torture or inhuman or degrading treatment—including who should bear the onus of proof—has been the subject of important decisions of UK courts in recent years, including A v Secretary of State for the Home Department. It has also been the subject of decisions of the Strasbourg Court, including Jalloh v Germany, Gäfgen v Germany, A v UK, Abu Qatada v UK, and most recently the decision of El Haski v Belgium, (this latter case is, regrettably, only available in French). Some doubts remain regarding whether the same standards apply for so-called ‘real’ evidence obtained by ill-treatment, and statements obtained by the same means (see my post on the Gäfgen case here). Further questions have been raised as to whether the severity of the ill-treatment used to extract the evidence (degrading, inhuman, or torture) has a bearing on its admissibility (though the decision in El Haski reportedly suggests that the same standard applies regardless of the classification of the ill-treatment: see here). The precise scope and extent of the exclusionary rule is a rapidly developing area of law. It remains to be seen what appellate courts will make of SIAC’s decision in this case. One thing seems certain: the controversy regarding the presence in the UK of foreign-born so-called ‘radicals’, and the use of expulsion as a tool of national security policy, is unlikely to abate anytime soon.