HOUSE OF LORDS
House of COMMONS
MINUTES OF EVIDENCE
JOINT COMMITTEE ON HUMAN RIGHTS
ALLEGATIONS OF COMPLICITY IN TORTURE
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Taken before the Joint Committee on Human Rights
Mr Andrew Dismore, in the Chair
Lord Lester of Herne Hill
Earl of Onslow
Mr Virendra Sharma
Mr Edward Timpson
Memorandum submitted by Mr Craig Murray
Examination of Witness
Craig Murray, former British Ambassador to
Q77 Chairman: This is a public evidence session of the Joint Select Committee on
Human Rights as part of its ongoing inquiry into the United Nations Convention
Against Torture and allegations of complicity in torture. Our first witness
today is Mr Craig Murray, former
Mr Murray: Torture was not conducted by any
Q78 Chairman: These are American agents?
Mr Murray: Yes. Earlier this year I had the opportunity to meet a defector from the Uzbek security services, a Major Yakubov, who has since been given political asylum in this country. I had a long talk with him and he seemed to me very credible. He alleges that he was present at an interrogation session during which a prisoner was beaten and a CIA agent was in attendance.
Q79 Chairman: But not a
Mr Murray: No.
Q80 Chairman: It has been suggested in relation to other cases involving
Mr Murray: No. I do not believe that we passed on questions for specific
Q81 Chairman: There have also been allegations in relation to
Mr Murray: I do not quite understand what you mean.
Q82 Chairman: For example, it has been alleged that in
Mr Murray: There were no
Q83 Chairman: There is no evidence of any
Mr Murray: Not that I believe, no.
Sharma: When you raised concerns with the
FCO about the
Mr Murray: I genuinely believed that there must be no awareness in
Sharma: In your experience had the
Mr Murray: I had encountered the issue before when I was working in a unit
known as the embargo surveillance centre which was tasked with preventing Iraqi
attempts at weapons procurement in the run-up to the first Gulf War in the
early 1990s. Essentially, we were an intelligence analysis unit and we commissioned
action. The question of intelligence that appeared to have been obtained from
torture did arise on that occasion. I had direct contact with the question
then. As a unit we reported directly to
Q86 Chairman: Did you get the impression that there was
Mr Murray: On that occasion we received a clear direction from the then prime minister, Mrs Thatcher, now Baroness Thatcher, that we were not to use any intelligence that might have come from torture.
Q87 Earl of Onslow: You tell us in your memorandum that a senior FCO official told you that the Security Services found the Uzbek intelligence received from the US to be useful. What value do you think the Security Services got from this material?
Mr Murray: I found that puzzling, and I still do, because whenever the British
of Onslow: Was this in
Mr Murray: It was in
Q89 Earl of Onslow: Did you see the majority of this intelligence so you could make that judgment?
Mr Murray: I believe I saw all of it.
Q90 Earl of Onslow: In your view it was basically totally useless and was concerned only with the internal Uzbek situation?
Mr Murray: Over 95 per cent of it was concerned with internal Uzbek matters.
Some of it was concerned with other parts of central
Q91 Chairman: Did that information come via the CIA or direct to you from the Uzbeks?
Mr Murray: It came to me from MI6 which had received it from the CIA.
Q92 Chairman: I meant the embassy.
Mr Murray: It would go from the American embassy in
Q93 Chairman: None of it came directly to you or anyone in your embassy from the Uzbeks?
Mr Murray: No.
of Onslow: It has been argued that the
Mr Murray: What happened was that the policy had changed since Lady Thatcher's
day. At the time I drafted the first telegram, to which I referred in answer to
Mr Sharma, I did not know that the policy had changed since Lady Thatcher's
day. If I may refer to the documents on waterboarding and other torture
techniques released recently in the
Q95 Earl of Onslow: Did you accept the legal advice of Sir Michael Wood?
Mr Murray: No, sir.
Q96 Earl of Onslow: I would like to pursue a little further the change of policy. If Lady Thatcher said that the information was not to be accepted and Mr Major, Mr Brown or Mr Blair said the same thing presumably the Americans would react in the same way as they did Lady Thatcher.
Mr Murray: I do not think that the particular material under consideration
when we had guidance from Number 10 not to look at anything that might come
from torture at the time of the first gulf crisis was actually CIA material. It
might have come from another source. But certainly in terms of the change of
policy I was very surprised. I had been on Foreign Office human rights training
courses and the fact we had a policy not to accept intelligence from torture
was what I would have expected the position to be. When in early March 2003 at
the meeting in
Q97 Chairman: Was the policy of Mrs Thatcher's government set out in writing in any document? Did you see anything like that, or were you just informed that this was how it was?
Mr Murray: I think we were just informed that this was how it was. I do not recall seeing a policy paper on the subject, but there is no doubt that that policy was taught on Foreign Office human rights courses.
Q98 Mr Timpson: You have touched on the legal advice from Sir Michael Wood, the senior legal adviser at the Foreign Office. Your previous answers seem to suggest that you do not agree with the advice that the receipt or possession of information obtained under torture is not prohibited by UNCAT. Did you accept that legal advice? If not, did you seek to challenge it?
Mr Murray: Sir Michael Wood was the legal adviser which is a formal title. He
had many other legal advisers under him. Within government circles there is no
internal method of challenging the legal advice of the Foreign Office legal
adviser on a point of international law. In my telegram of
Q99 Chairman: We are straying a little beyond our terms of reference.
Mr Murray: I do not agree.
Lester of Herne Hill: I ought to declare an
interest. Together with Sir Samuel Silkin, the then Attorney General, I
appeared as counsel in Ireland v UK
in which we gave an undertaking to the European Court of Human Rights that the
British Government would never again use torture or inhuman or degrading
treatment following what had happened in Northern Ireland. In the documents
that you were given, including Sir Michael Wood's advice, did you see anything
to indicate that there was a positive obligation on the
Mr Murray: I was aware of that from my own reading of the UN Convention
Against Torture but nothing which was given to me in the context of all the
discussions I had with the FCO on this matter would have indicated that. I go back
to the point I was making. Given that the United Nations said that torture was
a routine investigative technique in
Q101 Dr Harris: Mr Murray, is it fair to say that in their recent statements the government have not made the link you have just made, namely that regardless of its use in a criminal court being in receipt of evidence that is likely in all the circumstances to have come from an interview where torture has been used is not equivalent to being complicit under article 4? Do you agree that that may be their position?
Mr Murray: I think the essence of the government's position is that if you receive intelligence material from people who torture, be it CIA waterboarding, or torture by the Uzbek authorities or anywhere else, you can do so ad infinitum knowing that it may come from torture and you are still not complicit.
Harris: The government say that they condemn
the use of torture, do not participate in, solicit, encourage or condone the
use of torture and work hard to eradicate it, but they also say in their response
to our report on the UN Convention Against Torture: "#Our rejection of the use
of torture is well known by our liaison partners. The provenance of
intelligence received from foreign services is often obscured as intelligence
and security services, even where they share intelligence, rarely share the
details of their sources. All intelligence received from foreign services is
carefully evaluated. Where it is clear that the intelligence is being obtained
from individuals in detention the
Mr Murray: Their position remains the one outlined by Sir Michael Wood, and it was put to me that if we received intelligence from torture we were not complicit as long as we did not do the torture ourselves or encouraged it. I argue that we are creating a market for torture and that there were pay-offs to the Uzbeks for their intelligence co-operation and pay-offs to other countries for that torture. I think that a market for torture is a worthwhile concept in discussing the government's attitude.
Q103 Dr Harris: In your evidence you assert that Jack Straw himself as foreign secretary endorsed Sir Michael Wood's view set out in that memorandum?
Mr Murray: Yes.
Q104 Dr Harris: That would not be a surprise in a sense given the government's position that the Wood memorandum is at least consistent if not congruent with the government's then, and presumably currently, position?
Mr Murray: What you say about the government's position is true, but it has done everything possible to disguise its position. I received an email from the Bishop of Bath and Wells who had written to a government minister to say he was worried about the possibility that we were using intelligence from torture as highlighted by the Binyam Mohamed case. He got the reply that was always given which was to refer to the first part of the government's position that you cited - the bit about condemning torture unreservedly - but not the second part. The government do not volunteer the fact that they very happily accept this information. I make it absolutely plain that I am talking of hundreds of pieces of intelligence every year that have come from hundreds of people who suffer the most vicious torture. We are talking about people screaming in agony in cells and our government's willingness to accept the fruits of that in the form of hundreds of such reports every year. I want the Joint Committee to be absolutely plain about that.
Q105 Dr Harris: You argue that article 4 places a duty on you and any representative of the government to try to eliminate torture wherever it is found. When you were told not to put these things in writing do you think they were part of your compliance with article 4 of UNCAT?
Mr Murray: Yes, articles 4 and 5. In particular, article 5.2 provides essentially for universal jurisdiction which means that where for example the Uzbek Government or American Government do not prosecute those concerned we and any other state have a duty to prosecute, but we need the information. Therefore, my reporting back was in compliance with our obligations under UNCAT.
Q106 Dr Harris: We come back to the fundamental problem that since the government do not think that to be in regular receipt of intelligence that may or is likely to have come from torture comes within what they believe to be their duty, which is not to participate in, solicit, encourage or condone torture - I understand the point that you and other lawyers make - it does not stop you from carrying out your UNCAT duties if they ask you not to make a complaint that they are receiving that intelligence because they do not accept that mere receipt is a breach of UNCAT. Is that a fair characterisation of that aspect of your difference with the government?
Mr Murray: That is a reasonable way to express it. The telegrams that I wrote at the end of 2002 and beginning of 2003 were expressed quite specifically in terms of my concern that British government ministers were acting illegally by receiving this material under UNCAT. My telegrams said that the secretary of state might be acting illegally by being in receipt of that material.
Q107 Dr Harris: Can you clarify why you think they described those telegrams as unwise? You do not quote but say that they reported in that conversation that such sensitive questions were best not discussed on paper.
Mr Murray: It is always difficult to answer why somebody said something. You can say what they said, but obviously I am not inside their minds.
Q108 Dr Harris: Did you ask why?
Mr Murray: I would like to put this to you: two telegrams were sent by a British ambassador stating that the secretary of state might be acting illegally. I did not receive any written answer to those two telegrams. It would be extremely unusual for a Foreign Office ambassador to write back on any serious policy problem and not receive any reply from the department. To send two telegrams which actually allege illegality by your own secretary of state and not get a written refutation is quite extraordinary. Instead, I was summoned to a meeting at which I was told that these things were better not put in writing. I was able to get the Sir Michael Wood letter which, if you like, is a peek into a secret policy because I was able to insist on my right to have something from legal advisers saying that I was not acting illegally by receiving this material.
Q109 Dr Harris: We have already established their argument is that they have a different interpretation of the law from you. We shall be questioning them again about it because to question you is of limited value given your position. However, it may be - I am not saying this is the case - they would say that no one else is saying what you are saying about the use of torture or that people who report it are ignored, and you are not necessarily the most unbiased or neutral witness because it may be seen that you have a grudge to bear. I do not want to go into your personal situation. Are you aware that that is part of their case, or are you happy that, even though you disagree, they are dealing with it on the legal position as they see it?
Mr Murray: Facts are stubborn things.
Q110 Dr Harris: I did not mean facts. To put it in cold terms, are they sticking to their legal disagreement with you or do you believe there is a campaign to undermine your credibility?
Mr Murray: For the past five years they have been telling people that I am an
alcoholic and saying all kinds of things about me which are simply not true. I
should say that I am not and never have been. Part of their reaction was to try
to undermine me. It is undoubtedly a fact that I sent those telegrams saying we
should not be receiving intelligence from torture, that I was called back to
Harris: My final question is about what the
UK Government did. There is torture going on in
Mr Murray: As a result of the policy change we have been discussing, where we did not receive intelligence from torture and then decided it was okay, we then ended up with a schizophrenic policy. A major part of my duty as ambassador, which was acknowledged, supported and led by the human rights policy department in the Foreign Office, was to campaign and work for an improved human rights record in Uzbekistan, including urging the Uzbek Government to clean up its act in general and specifically on torture. That was the left hand, if you like. At the same time, the right hand was lapping up the results of the torture on the intelligence side. The difficulty was that it resulted in a schizophrenic position and that reflects exactly the sort of government position you read out. On the one hand we say we unreservedly condemn torture and on the other hand we say that whilst unreservedly condemning it we will receive its results. It makes no sense.
Q112 Chairman: Did you raise directly with the Uzbekistan Government concerns about their human rights record in general and about particular acts of torture?
Mr Murray: Yes, on numerous occasions.
Q113 Chairman: Was that face to face rather than in any document or memorandum?
Mr Murray: It was face to face but also in terms of formal diplomatic notes.
Q114 Chairman: I want to probe ministerial responsibility a little further. You have made some serious allegations both generally and to us today. When do you think the policy might have changed? Was it a consequence of 9/11 or before it? You had been in the Foreign Office throughout that period.
Mr Murray: I am sure it changed post-9/11. Forgive me for making a suggestion
to the Joint Committee, but were I you I would be fascinated to discover when
the Foreign Office first found out that the
Q115 Chairman: When did you start in
Mr Murray: I started in August 2002.
Q116 Chairman: So, it began more or less from the start of your service there?
Mr Murray: Yes. The
Q117 Chairman: As far as you are aware, were the Attorney General or Solicitor General ever asked for an opinion on the legal position, or did they ever offer one?
Mr Murray: No, but whenever I raised these issues I was referred to Sir Michael Wood; I was never referred to the law officers.
Q118 Chairman: Do you know whether anybody else asked the law officers?
Mr Murray: Not to my knowledge. I should say that I have known Sir Michael Wood for some years and if there were an opinion by the law officers he would have referred me to it.
Q119 Chairman: Did you ever have direct access to ministers to discuss any of these issues with them face to face?
Mr Murray: No, I did not. I asked but obviously that was like putting it in writing; it was something better not done.
Q120 Chairman: When you sent your original telegrams do you know whether Jack Straw actually received them or do you believe they were headed off at the pass by officials?
Mr Murray: I know for sure that Jack Straw read them. I was told at the meeting in March that he had specifically discussed my telegrams with both Sir Richard Dearlove and Sir Michael Jay.
Q121 Chairman: To summarise where we are, we were not directly involved in
torturing anybody in
Mr Murray: I would agree with that.
Q122 Chairman: That is a summary of your case?
Mr Murray: I would add one point. My case is that because as an ambassador I
was fortunately a member of the senior civil service and I was arguing against
this I was able to be given high-level policy direction and be told that
ministers had decided we would get intelligence from torture. The fact that ministers
made that decision was the background to what was happening in
Q123 Chairman: So, ministers specifically used the words "torture", "evidence from the CIA" and "no questions: turn a blind eye"?
Mr Murray: Ministers certainly had before them and read my telegrams which said that this was torture and detailed the type of torture involved.
Q124 Chairman: What you just said was that ministers said it was okay to use torture?
Mr Murray: No; I think I said that ministers said it was okay to use intelligence from torture.
Q125 Chairman: Therefore, the inference is that it is not just turning a blind eye or "ask no questions, tell no lies"; it is specific knowledge?
Mr Murray: Nobody argued to me once that the Uzbek intelligence we were discussing did not come from torture; everyone accepted that it came from torture and the question was whether or not we accepted it. Nobody said that it was not actually torture.
Dubs: Presumably, when you were in post in
Mr Murray: Hardly ever. We met in
Dubs: But you occasionally met other
ambassadors even if it was just in
Mr Murray: I did indeed.
Q128 Lord Dubs: What was their response?
Mr Murray: I think that in most cases the best way to sum up their response was "rather you than me".
Q129 Chairman: Do you mean "rather you than me" in terms of raising the issue?
Mr Murray: It was "rather you than me raise the issue". When I drafted the
first telegram, which was genuinely drafted in the expectation that the
government would want to stop the practice if they knew of it, I showed it to a
colleague in my political section in
Q130 Lord Dubs: You told us earlier in this session that you noted a change in British Government policy.
Mr Murray: Yes.
Q131 Lord Dubs: Leaving aside the question whether or not your ambassadorial colleagues should have raised their concerns with you, surely did you not ask them if they were aware of this and, if so, how they felt about it?
Mr Murray: I think we did. My general point is that my ambassadorial
colleagues all sympathised with the position I was in and tended to agree with
me that we should not be doing this sort of thing, but they were not willing to
put at risk their own careers. It was perceived that you were not allowed to
disagree and if you cast any doubt on the war on terror and war in
Q132 Chairman: I think this takes us beyond our terms of reference.
Mr Murray: I do not think it does. Torture gives you false intelligence; it does not give you the truth. There was an appetite for false intelligence.
Q133 Lord Dubs: I want to ask one further question about the change in British Government policy to which you have referred. When you spoke to other British ambassadors were they aware of the change in that policy or was it you who told them?
Mr Murray: I believe it was I who told them. There was never any official communication I saw of this change in policy. No telegram ever went out saying that we now receive intelligence from torture; it was something that you were just meant to absorb as the practice. It was not written down.
Q134 Chairman: The ambassadors you were talking to were also from countries with rather questionable human rights records?
Mr Murray: Yes, though in most cases not as bad.
Bowness: You suggested we should find out
Mr Murray: On the first point, I did not suggest you should find out when the
Q136 Earl of Onslow: In my view the allegation you make that there has been a definitive policy change means that once the government have said evidence obtained under torture may be accepted that is complicit; they are encouraging it. Other than your memory of what Mrs Thatcher said, do you have documentary or other evidence that this was definitely the policy, which is what it should be, so we can see that the change has been real, substantial and established? If that is the case this is an extremely serious allegation to make against the government. Do you see what I am getting at and why?
Mr Murray: Yes, I do. I am sorry to say I do not have any documentary evidence to support my memory of that occasion. I suggest that you ask Lady Thatcher; I am quite sure she would be prepared to confirm it.
Q137 Lord Bowness: You have referred a number of times to that policy being contained in standard Foreign Office briefings. Presumably, something must have been circulated amongst the FCO and ambassadors as to what our policy was on human rights.
Mr Murray: I am quite sure that it was in human rights training courses. I volunteered to go on one such course. Probably most ambassadors have been on human rights training courses, and I am quite certain that this would be contained in the training materials.
Q138 Chairman: What would be contained in the training material would be the correct policy from your point of view?
Mr Murray: Yes.
Q139 Chairman: On the one hand you have the policy as expressed in all the paperwork but on the other hand something rather different is going on underneath?
Mr Murray: I think that is true.
Q140 Chairman: If we were to ask for the FCO training manuals now we would find them squeaky clean?
Mr Murray: Probably.
Q141 Dr Harris: Were we grateful to the Americans for the intelligence we received, or did we just say, "Oh, fine"?
Mr Murray: The intelligence that I saw in
Harris: What I meant was: did we express
gratitude to the Americans for sharing it with us either out of politeness or
self-interest? You report that Linda Duffield told you Jack Straw had discussed
the question with Sir Richard Dearlove and the worry about the UK-US
intelligence-sharing agreement which stipulated that all intelligence must be
shared. Influential figures in the
Mr Murray: What I can say is that from my 20 years in the Foreign Office I have no doubt that the UK/US intelligence-sharing agreement is extremely highly prized by the people on the security and strategy side in the Foreign Office. The abrogation of it in any form would be unthinkable to them largely because they tend to have a rather narrow view of the world, but it is certainly something that very much influences people.
Q143 Dr Harris: The point is that if we had said, "Thank you very much", that is more likely to give rise to argument about what represents encouragement than just passive receipt of the information. Whether we were grateful because of what it contained or expressed our gratitude because we were pleased to be in that receiving relationship is irrelevant if the sender of the material thinks you are genuinely grateful for being sent the material.
Mr Murray: It is worse than that because there was direct liaison between MI6 and the Uzbek Secret Service. MI6 about once a year would send somebody out to meet the Uzbek intelligence agencies and gratitude was definitely expressed for the intelligence material passed to them.
Q144 Chairman: To the Uzbeks direct from MI6?
Mr Murray: Yes; there was an annual visit.
Q145 Chairman: Were you present at any of those meetings?
Mr Murray: I did not go to the meetings.
Q146 Chairman: So, an MI6 operative met some spook from
Mr Murray: I met the MI6 operative; he stayed with us in the embassy. I would see him off to his meeting but I did not go to it.
Q147 Chairman: That is a direct link between MI6 and the Uzbek security services which we did not know about before.
Mr Murray: It had been going on annually. When I was ambassador I stopped it for all those reasons.
Q148 Chairman: How did you stop it? Did you tell MI6 that they were no longer welcome or that their operative had to find himself a grotty hotel?
Mr Murray: I said that we should stop this; it was not good and they were no longer welcome.
Harris: What you are saying is that even
though you were not there you are confident from meeting this chap that he
would have expressed thanks - I want you to use your own words - for
intelligence material that had emanated from
Mr Murray: I have no doubt that MI6 told the Uzbek Government we valued their intelligence co-operation and the material that was passed on.
Q150 Chairman: Is the UK-US intelligence-sharing agreement documented in a memorandum of understanding or anything, or is it a secret?
Mr Murray: It is secret; it is not published. I believe there are about four different memoranda of understanding and there is a composite agreement which encapsulates them. I have not looked at them for years, and I would not be allowed to look at them now.
Q151 Chairman: Is it fair to say that the material that came from the CIA from
Mr Murray: If there is one thing you take from my evidence it is that when you look at waterboarding and the extraordinary rendition programme there was no CIA intelligence report to emerge as a result of torture and extraordinary rendition of which MI6 did not get a copy. Everything is copied. That is the fundamental working of the agreement. Everything is copied between MI6 and the CIA and between GCHQ and NSA, though the latter does not come within your remit.
Q152 Chairman: But when I say that this mass of intelligence will be coming over
some will be a subset from dubious sources, of which one will be from
Mr Murray: Yes.
Q153 Mr Timpson: Why do you think no one else has come forward and made these serious allegations?
Mr Murray: It worries me enormously. It seems to me there is something
fundamentally wrong. I would hope that by now the evidence you have been
hearing from different people has built up a picture of complicity in torture.
Why am I the only senior British civil servant who as far as I am aware has put
down in writing that we should not get intelligence from torture because it is
illegal and against UNCAT? I find it quite extraordinary that one can make
people go along with it. You could also ask why lawyers in the
Q154 Mr Timpson: The strongest support for your case would be corroboration from another independent source but we do not have that. I am trying to get to the bottom of it. If these allegations are true why is it that no one else has come forward when someone has already come out with these allegations?
Mr Murray: I do not think the government has ever denied anything I have just
said to you. I would be very surprised if they said that anything I have told
you was factually wrong. I published a book on this matter which was a
recollection of my time in
Chairman: Thank you very much.
Memorandum submitted by Professor Philippe Sands QC
Witness: Professor Philippe Sands QC, Professor of Law, University College London, gave evidence.
Q155 Chairman: We are now joined by Professor Philippe Sands QC, professor of
international law at University College London. Welcome and thank you for
coming. We would like to ask you some questions about what "complicity" means.
It may help if I read out the memorandum by Sir Michael Wood that we debated in
the previous session because that is the nub of what we are talking about. The
memorandum is about the previous witness and is dated
Professor Sands: First, I would not treat this document as a formal legal advice in
that sense; it is a letter addressed to another civil servant that purports to
address a very narrow question and does not purport to give a full reasoned
legal opinion on the subject. What I say in my written evidence is that insofar
as the letter seeks to address a very narrow question it is not formally
inaccurate but it misses the bigger point which was addressed in the previous
witness's contribution, namely in what circumstances might the receipt of
information obtained through torture constitute complicity within the meaning
of article 4 of the convention. For apparently obvious reasons it does not deal
with that, but it is important to recall that article 15 says what it says.
That article does not say it is not appropriate to rely on information obtained
by torture for purposes other than court proceedings. This issue arose - it is
probably appropriate to jump straight to it - in the case of A & Ors which was a decision of the
House of Lords on
Q156 Chairman: Basically, what Lord Bingham is saying is that you could use a one-off piece of torture evidence as a shield to protect people but you cannot use it as a sword as part of a prosecution case?
Professor Sands: We know that Lord Bingham is a man who chooses his words very carefully. I think he recognises a commonsensical reading of the convention, but he is not saying that the systematic participation in the receipt of hundreds or thousands of pieces of information obtained in a situation in which torture is known to occur would not cross the line into complicity. He simply does not address that issue. We can speculate as to what he would say but that is not what he is addressing here.
Q157 Chairman: I think we shall come in more detail to the qualitative or quantitative line and where it is drawn. But what do you think is the significance in practice of Sir Michael Wood's advice in these circumstances, and more generally within the Foreign Office, as it advice became more widely known?
Professor Sands: In a sense you are asking for speculation. I have known Michael Wood for many years and have very great respect for him. I know him to be a man who gives robust, independent advice. As I read this letter I interpret it as intending to head off an irritant. A problem has arisen; someone is raising issues. What is the bare minimum that needs to be said in order to get rid of the issue? It does not address other issues including article 4. In my evidence I indicate that it may well be that Sir Michael Wood, other lawyers or the law officers address the meaning and effect of article 4 of the torture convention, but this does not address that and for that reason it does not give a complete answer.
Harris: You describe Lord Bingham's words as
providing a small opening to enable the government to come up with a position,
but is it not the case that the government has leapt through it and relied very
much on that approach? The 2008 annual report of the Foreign and Commonwealth
Office on human rights published in March 2009 says: "The use of intelligence
possibly derived through torture presents a very real dilemma given our
unreserved condemnation of torture and our efforts to eradicate it. Where there
is intelligence that bears on threats to life we cannot reject it out of hand.
What is quite clear however is that the information obtained as a result of
torture would not be admissible in any criminal or civil proceedings in the
Professor Sands: In a sense they are fudging; they are expressing a commonsensical position. You get the odd bit of information that has been provided under torture. It provides information that may head off some serious attack. What do you do? Do you just ignore it? They are saying no. But what they are not addressing is whether or not there is a policy of systematic reliance on such information.
Q159 Dr Harris: What I have just read out is consistent with Lord Bingham's judgment in your view.
Professor Sands: It may be. What I do not know is the factual background against which that is written. I have information about what is in the public domain. I have access to certain information through my professional practice as a barrister which for reasons you understand I cannot address in this forum. If they are talking about a very limited piece or pieces of information that may be one thing. It is quite another thing, if we take the scenario of those words, to imagine a situation in which Her Majesty's Government engaged in an arrangement with a country that was known to torture in a widespread way and turned a blind eye to what was going on and received all the information but did not participate physically in the torture. I do not think Lord Bingham had that in mind.
Q160 Dr Harris: But what Mr Murray described as a schizophrenic approach could arise where they worked to stop torture. Let us take the instance of the government being merely a passive recipient of information but they know that it may well have been obtained under torture because they know it happens. They have no intention to use it in any proceedings, to comply with the judgment in A & Ors, but it may be stuff that they feel they are entitled to according to the bit of Lord Bingham's speech that you read out. They will not know in advance; they cannot say, "Give the information to us next April because we think that it will contain information about a bomb in the House of Commons." Is it not the case that, even though in Mr Craig's words it seems schizophrenic, by being merely a passive recipient as long as they do everything else to stop it that is a consistent and possibly lawful policy given the case law provided by the House of Lords decision to which you have alluded?
Professor Sands: I do not think I can give a better answer than the one I have given. It might be depending on the particular facts, the regularity of the flow of information and the context in which the information arrived. I take your point, but perhaps I may turn it around a slightly different way. I have set out the criteria that I believe need to be met on the basis of case law and practice to determine when complicity arises. Essentially, there are three factors. First, there must be knowledge that torture is or is likely to take place.
Q161 Chairman: Does that include constructive knowledge?
Professor Sands: I think it would. In my view turning a blind eye in the face of overwhelming evidence would constitute knowledge for the purposes of the Committee Against Torture. Second - this is the crucial issue - there is a contribution by way of assistance. The question then becomes: at what point does the regular receipt of information that is known to have been obtained by torture amount in some way to a contribution? It depends on the factual scenario against which that happens. The third element is some material or substantial effect on the perpetration of the crime. If you go through those three elements you can begin to see a situation in which one-off accidental reliance on information would be in one category but systematic reliance on such information in the circumstances of knowledge of the background to an ongoing relationship with another state might well cross the line into complicity.
Q162 Chairman: It is the contribution by way of assistance that has a substantial effect on the perpetration of the crime, so those are two of the three elements in the wording you identify in the ICTY judgment. I have no wish particularly to defend the government, but in a legal sense it is hard to see why passive receipt - I shall come on to receipt with gratitude - via an email box that you do not close, even with knowledge that torture is taking place and the rest of your embassy is saying, "Don't torture", is in itself is contribution by way of assistance or that it has a substantial effect on the perpetration of the crime, because the fact that you are receiving it passively is not the reason they are doing it, is it?
Professor Sands: That would appear to be what Lord Bingham had in mind in the passage I read out, but what I am suggesting is that you must distinguish between different situations. There is a world of difference between the one-off receipt of information that comes into your mailbox and a relationship that is premised on regular, systematic, continual reliance against the background of a broader relationship between two sovereign entities.
Q163 Chairman: What goes to that relationship is the fact that you thank them and appear to approve it, or at least you receive the information and seek to maintain an active relationship in intelligence receipt. That is one of the facts of the case that is different from mere passive receipt.
Professor Sands: I think it is in that direction; it is not so much a letter of thanks and appreciation for what they have just received. The question is: when do you cross the line into encouraging it?
Q164 Chairman: Is there a difference when it comes through third-party countries?
Professor Sands: I do not think there would be. The encouragement can be direct or indirect. If you are aiding and abetting it can be done directly or indirectly. If essentially you are sending a signal to a state that it is all right to have a policy of abuse and torture and you will continue to have a sensible sovereign relationship with that state notwithstanding those practices that constitutes a pattern of encouragement and at some point that would constitute a contribution.
Q165 Chairman: To go back to
Professor Sands: Not if the Government of Uzbekistan is getting signals from elsewhere which allow the regular flow of information.
Q166 Chairman: From the CIA but not MI6?
Professor Sands: It could be through other channels bypassing Her Majesty's
Q167 Dr Harris: I am a little confused. I thought it was common ground even within the government that "encouragement", using its normal meaning, would be something they do not do because they say they do not instigate others to do so, and I think I have heard ministers say that they do not encourage it. I do not have the quote to hand. I also thought that that was your opinion and you were exploring only the meaning of complicity which I understand, based on the dictionary definition, to be something short of encouragement, because if complicity is encouragement you use the term "encouragement" at least in criminal law in this country. Therefore, you accept that as soon as you say this complicity amounts to encouragement you are making the case and I am trying to explore the situation where there is something that is not clearly encouragement but complicity.
Professor Sands: I am not sure I would accept the distinction between the words
"encouragement" and "complicity". The term in the convention that we are stuck
with, for better or worse, is "complicity". There has been some case law on
what on earth complicity means. Different writers, courts and bodies call it
encouragement and aiding and abetting. I think that at the end of the day it is
much of a muchness. Let me put it in a different sense: in the past week more
legal memoranda have emerged following President Obama's decision to release
information. It has now become clear that as at July 2002 the Central
Intelligence Agency and several months later the Department of Defense moved to
a policy of interrogation techniques which in my view constituted torture. The
crucial question for your purposes - it has been raised by Mr Murray - is: at
what point did the British Government or those associated with it have direct
or indirect knowledge of that change of policy? At the point that such
knowledge arises the failure to engage with the
Q168 Dr Harris: I may need to reflect on this further, but I thought that if you encouraged something clearly that went further than ending up being a party to it through complicity which could be passive. In your memorandum you identified two different definitions of torture. One was a broader one which you linked to the UN Committee Against Torture. As you put it, it includes tacit consent and acquiescence and, as the Chairman intimated in his intervention, constructive as well as actual knowledge that torture is taking place. You then go on to identify a narrower definition which stems from the conclusion of the ICTY trial which has three components. All three elements must be established: knowledge and a contribution by way of assistance which in turn has a substantial effect on the perpetration of the crime of torture itself. Clearly, the first one is wider than the other and does not require active encouragement, just tacit consent and acquiescence. In the conclusion of your submission to us I think you say you would go with the latter narrower one. In paragraph 25 of your submission you say: "Having regard to the requirements of the law a proper investigation of any possible complicity in torture by persons associated with the British authorities would have to focus on key issues of fact relating to ...", and then you refer to three elements. Your view is that it is the narrower definition that applies. If we accepted that view we would be adopting a narrower definition than tacit agreement and acquiescence.
Professor Sands: That is perhaps a drafting point. I do not think that was my intention. The Committee Against Torture established under the convention has very limited case law on the point. You have all of it here; that is all it has said on the subject. You read it very carefully and try to understand what the committee is saying. There is some jurisprudence, for example the Yugoslav war crimes tribunal. Essentially, it goes in the same direction. Looking at the examples given by the Committee Against Torture, if you are a doctor in the room and never touch the individual but you are there to ensure that the person can continue to be abused that is complicity. If you are a policeman who has been informed that an individual is at immediate risk and you do nothing that constitutes - here I paraphrase the committee - a form of contribution. Therefore, it is a negative or positive; it is the flip side of the same thing. I believe that essentially the three elements must be present on both standards that have been applied and I really do not make a point as to which is narrower or broader. What may be slightly unclear is what is meant by the term "contribution". "Contribution" can include a failure to act or turning a blind eye.
Q169 Dr Harris: I hesitate to give you more work, but my reading of it was as I have just said. I would still like to have your view on it.
Professor Sands: I shall submit a supplementary page to deal with it.
Q170 Chairman: I want to ask about the third element which says "substantial effect". Supposing the UK Government had raised this with the CIA and the CIA had said to the Uzbeks on behalf of the UK Government, "Please stop torturing", and meant it, the Uzbeks would just carry on anyway; realistically, it would make no difference whatsoever to what the Uzbeks did because that is their record. How would that affect the position? There would be no substantial effect one way or the other because they would not take a blind bit of notice of what we had to say, as was the case when it was raised with them.
Professor Sands: That may or may not be the case. I am not sufficiently close to the
facts of that particular scenario, unlike the previous witness. But one can
easily imagine a situation where a government becomes aware that certain
practices are being followed and makes it clear it does not accept that such
practices are tolerable and that if they continue it will take further steps in
order to indicate displeasure with what is going on. The "do nothing" option in
effect can be seen as encouragement and in that sense may constitute in an
indirect way a contribution to what is happening. What I have just said is not
that helpful in that everything turns on the specific facts of the scenario. I
have not directed my mind to the Uzbek situation; over the past four years a
great deal of my thoughts have been directed at the
Q171 Dr Harris: There is an argument that what the British Government is doing is illegal; there is another argument, which I am happier with, that as a matter of policy the government should change its policy. Part of the argument in that regard is that the law really does not help. Let us say that in the case of America or Uzbekistan the facts are that Britain says, "Don't do this", and sends money to train people in how to do interrogation which does not involve torture but still accepts, citing the words of Lord Bingham - I do not want to call it the "Bingham doctrine" - the caveat and receives intelligence which it says it will not use in proceedings. It looks at it in case it provides evidence that there is a ticking bomb and it can make a decision. In those circumstances, are you saying that those facts are consistent with knowledge that torture is taking place? That is element is ticked. What about "contribution by way of assistance"? There is passive receipt plus, "Thank you for sending us intelligence." The third one is "has a substantial effect on the perpetration of the crime of torture itself". As the Chairman says, this is a state that does it; it is probably one with which we will seek to have a memorandum of understanding because we know they do it. It seems to me that it is difficult to make a legal case on that.
Professor Sands: I wish I could give you a yes or no answer but I cannot. There is a point on a factual continuum where passive receipt on a regular basis can be seen as active encouragement and therefore complicity. Where on the continuum that happens is very fact dependent and I do not think it is helpful to give a general yes or no answer. The point you raise about a legal case is, frankly, exactly the situation in which President Obama now finds himself. Last week he chose his words very carefully. I think he was right to say that interrogators who rely on wholly erroneous and outrageous legal advice in good faith should not be targeted by way of prosecution. I think that is the right approach.
Q172 Earl of Onslow: I do not know whether you heard the allegation made earlier about Mrs Thatcher's government, namely that it did not use it. Later on we do it. Does it not follow automatically that the moment somebody says that before it was not accepted but now it is that must be encouragement or complicity? To my mind, the moment you say, "Yes, we do", whereas before you said, "No, we don't", the government is complicit.
Professor Sands: Let us take a hypothetical fact scenario. Let us assume that the situation in country A for a period of 10 years is that it will not touch certain categories of intelligence or information because it understands them to have been obtained by illegal means, namely torture. Then a change of policy takes place internally within the government and it adopts the direction you have just suggested, that is, "We will receive it. We will not use it in court proceedings but we reserve our right to use it for other purposes." The crucial question then becomes whether that change of policy is in some way communicated to state B. If you communicate that change of policy plainly you are potentially crossing that line into encouragement.
Q173 Chairman: What I find hard to believe about the Mrs Thatcher analogy is that somehow the government at that time said to the CIA, "Please don't send us information obtained under torture from Argentina", or wherever it happened to be, and then suddenly after 9/11 MI6 and the government said to the CIA, "You can start sending us dodgy information now." I do not see that as a credible scenario. I suspect that the CIA sent all the material they had all the time anyway no matter what Mrs Thatcher may or may not have said.
Professor Sands: I do not know, but if it is helpful the
Q174 Lord Bowness: Chairman, unless you think otherwise I do not believe we will get very much further with this particular question. This is a hypothetical situation and you are really saying that we have to judge it on the particular facts.
Professor Sands: I will try.
Q175 Lord Bowness: Forgive me if you think you are covering ground that you have already covered. The example, which is one of a number that we would probably want to put to you, is this: if the UK intelligence services get information which they know to have been obtained from what are described as "High Value Detainees" and they know they have been subjected to torture, or enhanced interrogation techniques to use that phraseology, would the receipt of that information constitute complicity?
Professor Sands: If it is preceded by a conversation between the Prime Minister of
this country and the President of the
Prashar: I have two hypothetical questions.
First, if the
Professor Sands: If I deal with them one at a time it may be a little easier. I need to be a little careful because that scenario is very close to another one which for me is a forbidden area as a result of Bar Council intervention. I do not want to indicate in any way that what I am saying addresses that matter at all. My own personal view based on the hypothetical situation that you give is that if the British intelligence services made questions available either themselves or in written form under the door in the knowledge that someone was being abused in violation of these international obligations it would be very strongly arguable that complicity would arise because I think it would constitute a contribution to a process in which one sought to obtain a confession or information which is one of the definitional elements for torture under article 1 of the convention. Therefore, that scenario in a hypothetical sense would raise the most serious issues.
Q177 Chairman: To take one step back from that, what about the situation where questions are supplied without knowing the specific conditions of the individual detainee in a country which generally has a bad record for torture, for example Uzbekistan?
Professor Sands: It comes back to the question of constructive knowledge. If the individual is being held in a country where for many years torture has not been practised, or it is under the control of a country where torture has not been practised, I do not think you can be expected to assume without further information that there has been a change of policy that would bring you into the "complicity" situation. On the other hand, you might be dealing with a situation where a country had a known track record of torture and abuse and you participated in that way. If you look at the Committee Against Torture the threshold of participation is pretty low, for example driving someone to a place where they will be abused. I think that the link between driving someone and providing questions or information on the whereabouts is a very clear connection, so in that scenario also there ought to be red lights flashing in relation to article 4.
Prashar: The second scenario is that if the
Professor Sands: Subject to the same caveat that I have just made, without wishing to express a view on any matter on which I am not allowed to express a view my personal opinion would be yes.
Sharma: Leaving aside the case of Binyam
Mohamed, what evidence is there in the public domain that any
Professor Sands: There is material in the public domain. In a book I wrote before my
most recent one I looked at this issue. I have not been involved in that case
and so I am free to talk about it. I came across material that concerned the
court martial of Col Mendonca. The Joint Committee might find it helpful to
look at the transcripts of the cross-examinations. I address that case in a
couple of pages in my latest book, to which I can draw the attention of your
clerk, which caused me to receive a stonking email from a person not a million
miles from the Ministry of Defence. The evidence was pretty clear. We could
trace what happened. We are talking now about September 2003. A visit is made
Q180 Chairman: Do you know the name of that legal adviser?
Professor Sands: I do but I do not recall it. I set it out in the book with all the footnotes, witness statements and transcripts that are publicly available.
Q181 Chairman: I assume you know that we have been looking at it from a different direction from the advice of the Attorney General at the time.
Professor Sands: Yes. We know that by September 2003 at least at the military level
there was cross-fertilisation of knowledge of a change of practice, but I have
also managed to track that the
Q182 Chairman: Can you say definitively what was the earliest date that this
information was available to the
Professor Sands: I can only say definitively that it was by
Q183 Chairman: Can you answer Mr Murray's question which he put to us in evidence:
when did the
Professor Sands: I cannot answer that question. All I can say is that I would be
very surprised on the basis of the close relationships at governmental and
intelligence service levels if there was not knowledge by the autumn of 2002 at
the latest. The reason I say that is that it is already in the public domain
that at that point detainees with whom the
Q184 Mr Timpson: Earlier you touched very briefly on the recent release of the four
torture memos by President Obama in the
Professor Sands: President Obama has not yet decided whether there will be an
independent inquiry. He has chosen his word very carefully. As I understand the
position as of today, he has left open the possibility of a criminal
investigation in relation to what he called the framers of the legal decision
to move to abusive techniques of interrogation, which I suspect means the
lawyers but may go higher up to some of the policymakers and politicians. He
has expressed his own lack of support certainly for a congressional inquiry
because he believes that that would be too partisan and political, but
apparently he is not so opposed to the idea of a blue ribbon inquiry by the
great and the good looking at all these issues as a possible way forward. I
think that the pressure in the
Q185 Mr Timpson: You say that regardless of the
Professor Sands: In the long run that would be a more sensible way forward because we would then be masters of our own situation and would not be waiting for information to emerge from elsewhere in dribs and drabs.
Q186 Mr Timpson: Bearing that in mind, have you given any thought to what the model
of that inquiry should be? For example, in Canada the Arar Commission is
carrying out an independent inquiry and has made some important recommendations
not only about the terms of reference of the inquiry but also about the role it
has played, that it has not been a democratic country. Is that the sort of
model we should look at or is there a better one that you think would fit in
Professor Sands: The Canadians have behaved impeccably after their difficulties with Mr Arar and their contribution. They really cannot be faulted. They were also concerned about partisanship and so sent it out to an individual to carry out an independent inquiry. I think President Obama is right to be concerned about the danger of making it a partisan issue. In a sense it is a bigger issue than that; it is not a left or right issue. In my own written works over the past four years I met some truly amazing people who were deeply committed republicans and said, "This is not us; we don't do this stuff", and acted to stop it happening. I have also met democrats who have taken a different view and would be happy to proceed. It is not a party-political issue. I think the most sensible way to proceed with it is to try to depoliticise it which means putting it in the hands of individuals who in a sense would take an independent technical, policy and legalistic approach rather than decide the matter within a political framework. There is a very complex related question: can one have an inquiry of a non-legal character going hand in hand with criminal investigations? That is a very difficult issue that other countries have faced. Once you have criminal investigations for perfectly sensible reasons people clam up; they do not want to speak because they are themselves at risk of investigation, indictment, prosecution or whatever. My own sense is that at least in the initial stages you want as much information as possible. It may be that in due course there will have to be criminal investigations, independent prosecutors, DPP or whatever, but at the point we are now we ought to do what President Obama is doing which is to throw out all the information. In this way I would also support what former Vice President Cheney has said. He wants to see the memos that show all the benefits from this type of abusive behaviour. I do not think I need to go further than that. Let us put out the interrogation logs, videos and policy investigations and look at the consequences of the photographs taken at Guantanimo and Abu Ghraib in inflaming the situation in Islamic countries. Let us put all of it out there but in a non-political way, if that is possible, by placing it in the hands of some sort of independent commission, whether it is a judicial body or the great and the good, in a de-politicised way.
Q187 Chairman: Earlier you said that President Obama was right to rule out the prosecution of CIA operatives as long as they were operating within the legal advice available to them, erroneous though it might have been.
Professor Sands: In good faith.
Q188 Chairman: Would you apply the same principle to
Professor Sands: In a situation of limited resources why would one expend effort, energy and resource on individuals who at the end of the day are not truly responsible for what has happened? The applicable principle must be to go up the decision-making process to the point at which the real decisions are taken, which is why in particular I have focused on the lawyers and policymakers rather than the people at the front line. What that necessarily requires as a matter of investigation - it is not clear to me who will do it - is a determination of what the interplay has been, without referring to any particular matter or case, among intelligence officers, government and others. That is a complex issue.
Q189 Chairman: Therefore, the Attorney General was not right to refer this to the police for investigation?
Professor Sands: I think the Attorney General was rather brave to do what she did. I suspect she came under intense political pressure to do otherwise, but she was presented with material - I do not want to go into the merits or demerits of the facts - and exercised independent critical scrutiny in her prosecutorial function as Attorney General. That was the exercise she performed. I do not think it was for her to decide whether or not to submit it to a general commission.
Q190 Chairman: To try to square the circle, how can you possibly have a proper and
open public or semi-public inquiry, as far as it can be, when there are people
at risk of prosecution, whether it be the individual humble
Professor Sands: It is a very difficult issue that was faced in a very dramatic way
Q191 Chairman: If I am right, the South African model is that there is immunity for everything to which you confess but you can still be prosecuted for anything you do not divulge.
Professor Sands: Essentially, if you participated fully and openly you were off the
hook for the purposes of criminal investigation, but if you failed to do that
you would be subject to criminal investigation. The same thing happened in
Q192 Chairman: Would you advocate immunity for things people owned up to?
Professor Sands: I have not thought about it in the context of this country. I have
looked at it in the context of the
Q193 Chairman: If I were an American and found myself in that situation I would claim the fifth amendment. Why risk it?
Professor Sands: It depends on the precise rules of engagement.
Q194 Chairman: We have heard that phrase before.
Professor Sands: The
Q195 Chairman: So, we need to change the rules of the game again?
Professor Sands: No comment.
Lester of Herne Hill: I apologise for
missing part of your evidence. The focus of your answer to the Joint
Committee's questions has been largely on investigation and criminal
prosecution, but I do not believe you have been asked about civil remedies in
Professor Sands: I can answer that question by reference to the example Mr Timpson
gave because it has arisen in the case of Mr Arar, the Canadian national who
was intercepted at John F Kennedy Airport and shipped off to Syria where it
is fairly clear, as the Canadians found, he was horribly tortured. He went
through the process in
Chairman: This brings us to the end of the public evidence session. Professor Sands, thank you very much.