Memorandum submitted by Guardian
News and Media, dated 5 June 2009
Investigating torture: Legal issues that face
journalists
Prisoners' visits, telephone calls and correspondence
Journalists face many hurdles when trying to investigate
allegations of torture. For example, huge obstacles are placed
in the way of any journalist planning to visit a prisoner in order
to discuss and assess any allegations of torture. Prisoners are
also frequently prevented from making telephone calls or writing
to journalists (currently, serving prisoners Salahuddin Amin,
Rangzieb Ahmed have been told that they cannot contact journalists
this way).
It is extremely difficult to get permission for a
journalist to meet with a prisoner to investigate allegations
of torture or collusion with torture. It is rare for a media interview
with a prisoner to be granted until we reach the stage of threatening
to issue judicial proceedings (or even later). This requires huge
resources in terms of legal advice and correspondence, and it
often is the case that a visit is not agreed to until we have
issued proceedings for judicial review of the refusal to grant
a visit. The resulting delay (and expenditure of time and resources)
prejudices any journalistic investigation into such serious allegations
concerning the criminal justice process, such as allegations of
UK complicity in unlawful detention and torture in other jurisdictions.
It deters many newspapers from pursuing such stories.
The Prison Service interprets the current case law
in a very narrow way. It implements the letter but not the spirit
of the decisions in Simms and O'Brien 1999 and Hirst 2002. There
is an artificial distinction between communications in face-to
-face meetings and by letter or telephone; visits in person are
only deemed appropriate in 'exceptional circumstances' where a
person seeks to highlight an unsafe conviction or sentence, and
telephone interviews are only allowed where a prisoner wishes
to make serious representations about matters relating to prison
or prisoners. Any request we make for access to interview or to
talk to a prisoner about allegations of torture, or other matters
of important public interest about the criminal justice system
that do not fit within the above criteria, is subject to unacceptable
delays and legal wrangling. It takes around 12 months of legal
work to achieve an agreement for a journalist to visit a prisoner.
The Prison Service's standard letter in response
to a request states that visits are normally only allowed once
the prisoner has exhausted all avenues of appeal. However, this
restriction is only relevant to particular allegations concerning
miscarriage of justice in a prisoner's own case. It is wholly
irrelevant to an enquiry into allegations of torture or other
matters relating to the criminal justice system in its broader
sense. The rules fail to recognize that there are many legitimate
avenues of enquiry for journalists concerning the human rights
of prisoners, and that a media visit is not always solely concerned
with a miscarriage of justice in the sense of a wrongful conviction
in the UK. An investigation may also be concerned with other aspects
of the criminal justice process, including that prisoner's experience
while being held in detention in another country. These are matters
that should be protected by Article 10, the right to freedom of
expression.
In-camera hearings: Criminal Procedure Rules 2005
(5.1. 2005 No. 384) Pt 69
The whole process under the Criminal Procedure Rules
is deeply flawed. First, there is no requirement to put the media
on notice of an in-camera application, save for putting up a notice
in the precincts of the court. Often the media will not even know
that there is an application. The timescales for responding to
the initial application are tight, and if the deadline is missed
the media have lost an opportunity to challenge a decision to
hold a secret hearing. In these circumstances, the media have
no realistic prospect of challenging evidence submitted in support
of an application, for example by showing that allegedly secret
information is already in the public domain. Unlike other cases,
where there is a right to an oral hearing on appeal, there is
no such right in relation to in-camera hearings and all the submissions
are in writing. The media do not get a fair hearing in these cases.
The Criminal Procedure Rules restrict the rights
of the media to appeal against in-camera orders. Rule 69.4 (b)
states that the appellant (any person directly affected by such
an order) must serve advance written notice of intention to appeal
against any such order, "not more than 5 business days after
the Crown Court Officer displays notice of the application for
the order". Unless a reporter is in the vicinity of the court
at all times during a relevant trial, and is able to respond extremely
promptly, it is not possible to comply with these requirements.
The danger is that in-camera hearings may be used
to conceal evidence of British collusion in torture. There is
no opportunity to test the evidence given by intelligence officers
and others (and issues of general importance to the media and
public are not always issues raised by, or of concern to, the
parties).
It is disturbing that so many in-camera hearings
and closed judgments are based on 'national security' considerations,
even where it is accepted by all parties that there is nothing
in the content of the information concerned that is in itself
a threat to national security. Instead, the argument is put that
national security would be threatened if information received
as a result of cooperation with other states is disclosed. Where
allegations are made about British collusion or knowledge of torture
taking place in other jurisdictions, it will almost always involve
some information obtained from or provided by another jurisdiction.
The UK government will always argue that any information
obtained as a result of intelligence sharing with other jurisdictions
should not be disclosed, and so information about torture taking
place in other jurisdictions will invariably be kept secret and
heard in camera. These claims often appear to be made without
actually providing evidence that the country concerned believes
that secrecy is necessary in the particular instance (for example,
the Binyam Mohamed case). This clearly has implications for the
principles of open justice and the need to investigate serious
crimes, and it means that journalists face an almost impossible
task in attempting to investigate and report on matters of such
important public interest.
Closed judgments
The 'closing' of court judgments is a matter of grave
concern. In the case of Binyam Mohamed (in which we have made
submissions to the court on behalf of UK media, that 7 paragraphs
concerning his treatment should be reinstated into the judgment)
the Council of Law Reporters expressed its concern about the frequency
in which cases are heard in camera and closed judgments issued.
The Council in its submissions pointed out that there is no requirement
that these judgments or transcripts should ever be put into the
public domain and they may be lost completely, even when any relevant
national security concerns have faded into the distant past.
It is essential that a system is devised so that
whenever a court gives a closed judgment, the media are allowed
(or even invited) to make representations in support of the open
justice principle. In many cases, both the judge and the parties
involved are content to proceed in secret and there is no-one
there to represent the public and to make the case for open justice.
There should also be a system of review of all closed judgments
to check whether it continues to be necessary to keep these judgments
secret. There should be a register of closed judgments so that
these important decisions to restrict access to information about
court hearings can be tracked and the public or the media should
be able to make a challenge to the orders and apply for access
to closed material at a later date if appropriate.
Access to evidence
Journalists are finding it increasingly difficult
to get access to evidence, even where it has been referred to
in open court. This is despite the fact that there is a protocol
between ACPO, CPS arid the media on the provision of such evidence.
(copy attached).
For example, in the case of Rangzieb Ahmed, Greater
Manchester Police initially refused to provide us with a photograph
used in open court (during an abuse of process application - but
we requested the material after the criminal proceedings had ended),
which showed Mr.Ahmed's fingernails, some of which had been removed
during torture. It was only after our legal department became
involved and referred GMP to the ACPO protocol, that GMP eventually
relented and provided the material.
The difficulties associated with this case have been
commented on by the Readers' Editor for the Guardian (article
attached), and this case highlights some of the difficulties faced
by journalists where there are in-camera hearings and closed judgments.
Summary
The investigation into allegations of serious crimes,
such as collusion with torture, must be recognized as a legitimate
and important area of journalistic inquiry and a matter of great
public interest. The current attitude of the Prison Service fails
to take account of the wider public interest in investigating
such matters: the Prison Rules on media visits should be reviewed.
It is only the most determined journalists and news organizations
that are prepared to devote considerable amounts of their legal
department's time and resources to seeking access to prisoners,
that are able to overturn what has become a blanket initial refusal
to grant media visits to prisoners making such grave allegations.
The Crown and prosecuting authorities too often treat
journalists as the enemy rather than abiding by their own protocols
on access to evidence.
Scant regard is paid to the principles of freedom
of expression and open justice. The increasingly routine reliance
on in-camera hearings and closed judgments threatens to close
forever a whole chapter of evidence relating to the British intelligence
services' practices and government policy on those held in other
jurisdictions, who are often subjected to cruel, inhuman and degrading
treatment.
These are some of the key legal issues that often
impede a journalistic investigation into allegations of torture.
Together, these factors have restricted news organizations' ability
to investigate fully, and report on, these allegations of torture
in other jurisdiction, and UK collusion in that torture.
4 June 2009
Letter from the Rt Hon Gordon
Brown MP, Prime Minister, to the Chairman, dated 18 June 2009
Thank you for your letter of 26 March following my
written statement on detainees. I shall respond to your specific
questions in the order in which you posed them.
On the subject of "collusion" in torture
carried out by others, I am glad that you welcome my statement
and the measures the Government has taken so far in response to
allegations of complicity in torture overseas. I repeat that the
UK will not participate in, solicit, encourage or condone the
use of torture or cruel, inhuman or degrading treatment for any
purpose. Nor, for the avoidance of doubt, will we "collude"
in torture carried out by others.
On the point of law which you raise, neither the
UN Convention Against Torture nor the European Convention on Human
Rights, which is incorporated directly into UK law by the Human
Rights Act, include a positive legal obligation to report or seek
to prevent acts of torture carried out by other states abroad.
However, the UK is committed to the prevention of torture, and
our efforts in this regard include a combination of project work
and diplomatic activity to build other states' capacity and awareness
of human rights. We also encourage ratification and implementation
of the Optional Protocol to the Convention Against Torture, including
the establishment of national preventative mechanisms.
You also asked about the letter which the Chairman
of the Intelligence and Security Committee (ISC) sent me on 17
March concerning allegations of complicity in torture. This was
a letter rather than a formal report. As the ISC stated in its
press announcement, it addressed issues which remain the subject
of legal proceedings and police investigation. I must therefore
consider carefully before deciding whether and in what format
it can be published, and the timing of any publication.
I can assure you that it remains the Government's
wish to consolidate for review by the ISC, and then publish, the
guidance under which UK officers work in detention and interrogation
circumstances, in order to make clear the very high standards
which apply. Work is underway to provide consolidated guidance
to the ISC. We have already provided all potentially relevant
original material.
With regards to publication, the Government will
aim to keep any redactions that may be necessary for national
security reasons to a minimum and will take the ISC's views into
account. There are no plans for wider distribution prior to publication.
Sir Peter Gibson has agreed to monitor compliance
with the consolidated guidance once it has been finalised, and
will cover compliance in this area in his published annual reports
as Intelligence Services Commissioner. The cases currently being
examined in the courts and elsewhere are historical and so will
not be relevant to Sir Peter's remit.
The content of Sir Peter's annual reports is, of
course, a matter for him to determine. However, I would expect
and will encourage him to focus on the systemic issues you describe
rather than the individual cases. As you have noted, individual
complaints fall to the Investigatory Powers Tribunal to consider.
133 James McLintock, aka Mohammed Yaqub; Moazzam Begg;
Ahmed Omar Saeed Sheikh; Richard Belmar; Tariq Mahmood; Salahuddin
Amin; Zeeshan Siddiqui; Tahir Shah; MSS; Rashid Rauf; Rangzieb
Ahmed. Back
