Allegations of UK Complicity in Torture - Human Rights Joint Committee Contents

Written Evidence

Annex to the memorandum submitted by Ian Cobain, The Guardian, January 2009


1. The FCO denies that it was unhelpful to MSS's father, and says it offered considerable assistance until the whereabouts of MSS became known.

2. MSS says that since his return to the UK he has been approached on a number of occasions by individuals who have identified themselves as officers of the Security Service.

Rangzieb Ahmed

3. During the abuse of process hearing that preceded Ahmed's trial, the court heard that he received no consular assistance in detention, and was seen by a consular official for the first time shortly before being put aboard a flight to the UK. Helen Rawlins, head of the consular section in Islamabad, told the court that she took up the post in March 2007, and it was May 2008 before she learned of Ahmed's detention. Consular access was then denied.

4. Ahmed has told the Guardian, via his solicitor, that he has been refused permission to correspond with the newspaper's journalists, telephone them, or receive visits from them in prison.

5. The Guardian has been considering whether it should pursue legal action in an attempt to bring some of the judge's closed ruling into the public domain. We wrote to Ahmed's solicitor, seeking his advice, and he turned to the court for guidance.

6. After a hearing on the matter was held, in camera, the judge ruled: "Submissions have been made to me by counsel for Rangzieb Ahmed that three distinct parts of the closed judgement should be removed from that part of the judgement and included in the open part. "I do not propose to deal in detail with those submissions. I have borne in mind, and I have throughout, the guiding principle and importance of open justice. As I said in the course of argument I would very much prefer that all my reasons could be made available to the public. As it stands, because of the exclusion of important parts of the evidence and my reasoning from the open judgement, people may find it difficult to understand why I reached the conclusions that I did. That is unfortunate and does nothing to improve the public's confidence in the judiciary.

7. "However, having made a ruling allowing some of the evidence to be given in camera, I have had to consider against the criteria on which I made that decision what can properly be included in an open judgement and what needs to remain, for the time being in a closed judgement.

8. "I have reconsidered those matters which I was asked to look at. I have also sought and received confirmation that the reasons for the original in camera order remain intact. My conclusion is that the judgements should remain in their present form. The matters which I am invited to put in the open judgement are so intertwined with matters in the closed judgement that I consider it is impossible to disentangle them."

Salahuddin Amin

9. Amin's description of the room in which he says he was tortured, with a few pieces of furniture and a small CCTV camera above a glass-fronted cupboard appears similar to that described by Rangzieb Ahmed.

10. Amin says he was not hooded on surrendering to ISI officers at his uncle's home. He says he was driven to an ISI prison and hooded once he was inside. He has given a detailed description of the route to the prison and its exterior.

11. Last April Waqar Kiani drove along the route described by Amin. He found himself at a building in central Rawalpindi that matched Amin's description. Local people told Waqar that it was known to be an ISI facility.

12. On May 1 last year, after The Guardian reported on Amin's allegations of British collusion in torture in some detail, we published a letter from Tony McNulty, then Minister of State at the Home Office, in which he said: "the government unreservedly condemns the use of torture as a matter of fundamental principle and works hard with its international partners to eradicate this abhorrent practice worldwide. The security and intelligence agencies do not participate in, solicit, encourage or condone the use of torture or inhuman or degrading treatment. For reasons both ethical and legal, their policy is not to carry out any action which they know would result in torture or inhuman or degrading treatment."

13. A response from Amin's solicitor, Tayab Ali, was published on May 5: "I would like to thank Tony McNulty for taking the time to respond to your leader of April 30. However it is unfortunate that he has issued a blanket denial rather than addressing the specific allegations levelled at the security services and the government. In order to assist I again clearly state that which has been asserted against the government, namely that the security services (MI5) or secret intelligence service (MI6) at the very worst instigated and at the very best turned a blind eye to the illegal detention, mistreatment and torture of British citizens in Pakistan.

14. "I hope McNulty will be able to answer the following questions: Did the British government or its agencies request that the Pakistani authorities should detain Salahuddin Amin? Why did the British government wait for 10 months before arranging to have Amin brought into UK jurisdiction from Pakistan? What did British intelligence officers in Pakistan think was happening to Amin in between their MI5 interrogations? Does McNulty agree that providing assistance in the detention of a person by an organisation notorious for abuse and illegality renders the helper morally and legally complicit in later abuse? Why did British consular officials fail in their duty to visit Amin and offer him protection? Why has the ISI not provided one single document relevant to their 10-month detention of Amin. Can McNulty explain why the government's responses to Amin's allegations were only provided in secret hearings during Amin's trial? What was the government so keen to hide from the public?

15. "If it is to be accepted that it is government policy not to carry out any action that would result in torture then, based on the allegations made by these individuals, there appears to have been a gross failure in that policy. In these circumstances I am sure McNulty must agree it is essential that an urgent independent inquiry establishes why this policy has failed.

16. Amin had been able to telephone and write to the Guardian, but I have been denied access to visit him for the last 12 months. A reporter from our sister paper, the Observer, was recently admitted to the same prison and allowed to interview convicted terrorists . He was not asking questions about allegations of British collusion in torture. Last month, however, Amin's solicitor told me that Amin says he has now been barred from telephoning me for "security reasons".

Rashid Rauf

17. In December 2007, Pakistani officials announced that Rauf had escaped from custody. He is said to have been allowed to pray, unguarded, at a mosque in Rawalpindi while being taken from court to a prison south of the city. He is said to have then slipped out of the back of the mosque.

18. Rauf's lawyer in Islamabad, Hashmat Ali Habib, says that he had heard reports of his client's escape several hours before the time of his escape given in the officials account. He told the Guardian in December 2007: "It wasn't an escape from custody. You could call it a 'mysterious disappearance' if you like, but not an escape. The Pakistanis are simply not interested in handing him over to the British. They never have been, although it is not clear why not."

19. Habib indicated in December 2007 that he believed Rauf to have been returned to ISI custody. He also said it was possible that Rauf's death would be announced at some point in the future: "Perhaps it will be announced that Rashid was caught in crossfire during a police operation."

20. On November 22 2008, Pakistani officials announced that Rauf was one of several people killed when a number of Hellfire missiles were fired a US Predator drone at a target in the village of Khaisoor, close to the Afghan border. Relatives of Rauf are reported to have said they do not believe the official account of his death.

Other detainees

21. The Foreign Office has said, in a number of answers to PQs from Andrew Tyrie MP, that it believes there to have been six British nationals or dual nationals held in Pakistan since 2000 and questioned about terrorism allegations. According to the reply from Kim Howells, then Minister of State with responsibility for counter-terrorism, two detainees who were mono nationals were seen by British officials other than consular officials. It is not clear from his answer whether any dual nationals were seen by British officials other than consular officials. Dr Howells subsequently wrote to Mr Tyrie amending to eight the total number of British nationals or dual nationals held in in such circumstances. He did not state whether either or both of the additional two had been seen by non-consular British officials. The Guardian finds the figure of eight to be puzzling, as we believe there to have been at least eleven British nationals and dual nationals detained in such circumstances since 2000, all of whom are thought to be known to the FCO.[133] It is not clear to us what the total number may be.

Calls for an investigation

22. There have been a number of calls for an investigation into these allegations.

23. The Foreign Affairs Committee said in its Human Rights Annual Report published in July last year: "We conclude that it is extremely important that the veracity of allegations that the Government has 'outsourced' interrogation techniques involving the torture of British nationals by Pakistani authorities should be investigated."

24. The same month, John McDonnell said of his constituent MSS: "I believe that there is now sufficient evidence from this and other cases to demonstrate that British officials outsourced the torture of British nationals to a Pakistani intelligence agency." Mr McDonnell added: "This warrants the fullest investigation by the Intelligence and Security Committee, which is best placed initially to undertake such an inquiry. I would expect the government to cooperate fully with such an investigation and eventually for the prime minister to make a statement to parliament on how this practice has been allowed to develop and what action is to be taken."

25. Andrew Tyrie, chair of the All Party Parliamentary Group on Extraordinary Rendition, said: "Any torture of British nationals by Pakistani authorities would be utterly unacceptable. If credible allegations implicating British officials in such mistreatment have been made then they require investigation. The ISC appears to be the most suitable body to examine these issues."

26. The Guardian also called for an inquiry in its leading article of July 15 last year that said: "Two bodies have responsibility for oversight - the intelligence and security committee (ISC), chaired by Margaret Beckett, and the investigatory powers tribunal (IPT), presided over by Lord Justice Mummery. If there are British citizens who have been tortured and who are living in fear, these bodies should seek out, and test, their evidence - and, where appropriate and possible, offer them due protection. The ISC - whose reports are evidenced by the security services to show a clean pair of hands - has powers to determine its own procedure. There have been a number of instances where it has reported on specific cases which raise general questions about policy. The IPT is a more shadowy body that observes confidentiality in the great majority of its dealings. In general, it is reluctant to investigate cases in the absence of first-hand complaints. But where parliamentarians believe there are individual cases which merit investigation, there is a very strong argument for Lord Justice Mummery taking a proactive interest."

Official responses

27. Asked about these allegations, the Home Office issued a statement on behalf of the Security Service in June last year that did not address the specific claims, but denied that the Service was involved in torture.

28. It said: "The Government unreservedly condemns the use of torture as a matter of fundamental principle and works hard with its international partners to eradicate this abhorrent practice worldwide. The Security and Intelligence Agencies do not participate in, solicit, encourage or condone the use of torture or inhumane or degrading treatment. For reasons both ethical and legal, their policy is not to carry out any action which they know would result in torture or inhuman or degrading treatment. The ISC gave the Security Service a clean bill of health in its 2005 report on torture. When Security Service personnel had come across instances when poor treatment of detainees was suspected, the Report commended that MI5 officers notified the detaining authorities immediately and this was followed up with an official complaint from London. All Security Service staff have an awareness of the Human Rights Act 1998, and are fully committed to complying with the requirements of the law when working in the UK and overseas. The main laws are Regulation of Investigatory Powers Act 2000, Security Service Act 1989, Intelligence Services Act 1994."

29. This FCO's response to the FAC's calls for an investigation was as follows: "The Government absolutely denies the serious allegation that it has "outsourced" torture as a way of extracting information. We unreservedly condemn the use of torture and our clear policy is not to participate in, solicit, encourage, or condone the use of torture or inhuman or degrading treatment for any purpose.

30. "The Government takes allegations of mistreatment very seriously. As the Foreign Secretary told the House on 17 July: 'The Security Service has checked for any relevant information in light of the media allegations and informed [him] that there is nothing to suggest that it has supported torture in Pakistan or anywhere else'.

31. "If there was a question of any person acting in an official capacity being engaged in an act of torture then this would be a matter for the police. If any individual believes that their Human Rights have been infringed as a result of actions carried out by, or on behalf of, any of the intelligence services then they should take their case to the Investigatory Powers Tribunal."

32. The Intelligence and Security Committee has declined to examine these allegations. During the Commons debate on the ISC's annual report, in July last year, David Winnick asked the then chair, Margaret Beckett: "My right hon. Friend probably heard my intervention on the Home Secretary in which I mentioned the serious allegations that a British national had been tortured by Pakistan's secret service and MI5 was aware of it, which has been denied. I do not want my right hon. Friend to commit herself, but will the Committee consider looking into those allegations and investigating accordingly?"

33. Mrs Beckett replied that such allegations are a matter for the Investigatory Powers Tribunal: "As I have already indicated, individual cases are matters for the tribunal. The Intelligence and Security Committee investigates the policy and, indeed, the implementation of the policy by the agencies; the tribunal looks at individual cases. However, I assure my hon. Friend that the Committee is aware and very mindful of the serious concerns that he has raised."

34. We have asked the current chair of the ISC, Dr Howells, whether he shares his predecessor's views on this matter, but have yet to receive a response.

Letter from the Chair to Jonathan Evans, Director General, MI5, dated 27 January 2009

I am writing in respect of the interview you gave to journalists from six national newspapers, on 6 January. According to your website, this was the first time that a serving Director General of the Security Service had given an interview to the press. I understand that amongst the subjects discussed was the level of threat from international terrorism.

I applaud your decision to be interviewed by the press. While there are undoubtedly many aspects of your work which cannot be discussed publicly at present, your views on the security threat facing the UK are highly influential on Government policy and need to be better understood, and scrutinised, by Parliament and the public. I hope that this initiative can be the beginning of a process by which the Security Service does more to inform Parliament and the public of its views and concerns and is willing to be questioned about them.

You may recall that the Joint Committee on Human Rights, which I chair, wrote to you in 2007 in order to find out at first hand your assessment of the security threat facing the UK. We required this information in order to understand the context in which the Government had brought forward its Counter-Terrorism Bill. Unfortunately, you declined to provide us with the information that we had requested.

I now wish to renew my invitation for you to meet my Committee, on the same basis as you recently met the press, so that you can provide us with information about the level of threat from international terrorism, and deal with our questions. Such a meeting will assist our ongoing scrutiny of the Government's counter-terrorism policy and I hope may initiate a more constructive dialogue between the Security Service and Parliament.

I look forward to receiving your reply on whether you are willing to accept my Committee's invitation.

Letter from Jonathan Evans to the Chair, dated 3 February 2009

Thank you for your letter of 27 January.

This Service is of course happy to give an account of its actions, views and concerns, and be questioned on them. The mechanism set up by statute to effect this is the Intelligence and Security Committee of parliamentarians. I regularly give evidence to that Committee and they question me. This is a challenging but constructive process, and of course regular reports on aspects of the ISC's work are published.

I am grateful for your invitation to meet your Committee. As I have said previously, I am prepared to provide your Committee with private background briefing on the current threat, as I have periodically done for the Home Affairs Select. But our parliamentary accountability is to the ISC.

I have copied this letter to Kim Howells.

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.


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

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