UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 230-ii

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON HUMAN RIGHTS

UN CONVENTION AGAINST TORTURE:

ALLEGATIONS OF COMPLICITY IN TORTURE

 

 

Tuesday 28 April 2009

MR CRAIG MURRAY

PROFESSOR PHILIPPE SANDS QC

Evidence heard in Public Questions 77 - 196

 

 

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Oral Evidence

Taken before the Joint Committee on Human Rights

on Tuesday 28 April 2009

Members present:

Mr Andrew Dismore, in the Chair

 

Lord Bowness

Lord Dubs

Lord Lester of Herne Hill

Earl of Onslow

Baroness Prashar

 

Dr Evan Harris

Mr Virendra Sharma

Mr Edward Timpson

________________

 

Memorandum submitted by Mr Craig Murray

 

Examination of Witness

 

Witness: Mr Craig Murray, former British Ambassador to Uzbekistan, gave evidence.

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 UK Ambassador to Uzbekistan. I should start by reminding everyone of the remit of the Joint Committee which relates only to human rights in the United Kingdom, so it can focus only on the activities of UK agents who are subject to the Human Rights Act and not on UK foreign policy or the activities of foreign government or agents, except to the extent they are strictly relevant to the issue of whether any UK personnel are complicit in acts of torture. We also cannot investigate individual cases. Those are the terms of reference set by the House of Commons and House of Lords. Mr Murray, perhaps I may start by pinning down what you do not allege before going on to what you do allege. Your memorandum refers to torture in Uzbekistan in 2002/03. Was all of that torture conducted by the Uzbek authorities or were any UK or US agents directly involved?

Mr Murray: Torture was not conducted by any UK authorities and to my knowledge no UK agents were ever directly involved in committing torture. The US secret services, in particular the CIA, had very close liaison with the Uzbek security services of which I was well aware at the time. While I was ambassador I was not aware of any direct US involvement in torture. My understanding was that they were supplying questions and getting answers.

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 UK agent?

Mr Murray: No.

Q80 Chairman: It has been suggested in relation to other cases involving detainees in Pakistan, Egypt and Morocco that UK agents proposed questions to be asked under torture. Do you have any evidence of that having happened in Uzbekistan?

Mr Murray: No. I do not believe that we passed on questions for specific interrogees in Uzbekistan.

Q81 Chairman: There have also been allegations in relation to Pakistan, Egypt and Morocco that UK agents who interviewed suspected terrorists should or must have known at some stage that those suspects had been tortured on a previous occasion whilst in the custody of those countries. Is there any evidence of that having happened in Uzbekistan?

Mr Murray: I do not quite understand what you mean.

Q82 Chairman: For example, it has been alleged that in Pakistan in some cases suspects have been tortured by the Pakistan Secret Service and a British agent has come along and asked questions afterwards and it should have been obvious to that agent that the individual had been subjected to torture.

Mr Murray: There were no UK agents meeting interrogees in Uzbekistan at all as far as I am aware.

Q83 Chairman: There is no evidence of any UK nationals or residents being tortured in Uzbekistan?

Mr Murray: Not that I believe, no.

Q84 Mr Sharma: When you raised concerns with the FCO about the US intelligence material what response did you expect?

Mr Murray: I genuinely believed that there must be no awareness in Whitehall that the intelligence it was receiving came from torture. That was the premise on which I acted. Having first checked with the American embassy by my deputy that it was credible that these intelligence reports came from torture, I sent a telegram in late October or early November 2002 to say we were receiving intelligence from torture. I genuinely expected to get a response that we must stop receiving that kind of intelligence from Uzbekistan. I received no reply at all. Essentially, I sent the same telegram again at the end of January/beginning of February 2003 to which also I received no written reply, but I was summoned back to a meeting in London in early March 2003 at which I was told it was better not to put these things in writing.

Q85 Mr Sharma: In your experience had the US and UK authorities previously taken a strong line against the use of information received under torture or had you not encountered these issues before?

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 10 Downing Street, not to a government department.

Q86 Chairman: Did you get the impression that there was UK complicity on those occasions?

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 embassy in Tashkent was able to check it out separately against facts on the ground it never once found any of piece of intelligence that was valuable. None of it related to any security threat to the UK. It was virtually all concerned with alleged Islamist threats to President Karimov and his Government in Uzbekistan. It was quite easy to demonstrate that much of it was simply untrue. To give one example of many, there was intelligence pointing to a jihadist training camp in the hills just over the Uzbek border.

Q88 Earl of Onslow: Was this in Afghanistan?

Mr Murray: It was in Turkmenistan. My defence attaché, Col Ridout, had been to the precise co-ordinates given and knew for a fact that there was nothing there. That was fairly typical. The intelligence material was being provided to the CIA by the Uzbek Security Services and the point of it was to exaggerate the threat to the Uzbek Government in order to justify the alliance with the Karimov regime.

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 Asia. I recall one piece concerned with Germany but none of it related to anything like a specific terrorist plot in Europe.

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 Tashkent back to Washington and from Washington to London and then from London to me. That was the route by which I received it.

Q93 Chairman: None of it came directly to you or anyone in your embassy from the Uzbeks?

Mr Murray: No.

Q94 Earl of Onslow: It has been argued that the UK intelligence-sharing agreement with the US will be jeopardised if the UK asks not to receive evidence obtained from torture. Does this suggest that ministers were reluctant to see such material but did not want to risk arguing with the Americans? Since you have just said that Lady Thatcher said under no circumstances was torture to be used presumably the statement you have just made blows a hole in the whole argument that we should be careful about using information obtained by torture provided by the CIA.

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 United States on the orders of President Obama, if we are continuing to receive, as we are, all the intelligence reports put out by the CIA we are complicit in a huge amount of torture. I was just seeing a little corner of it in Uzbekistan.

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 London I was told that it was now policy to accept intelligence that may have been obtained from torture I was very surprised. I was told directly that that had been agreed, that it had the authority of the secretary of state and had come from Jack Straw. I was told that he had discussed it at a meeting with Sir Richard Dearlove. Whether or not there were other meetings about which I was not told I am unaware, but I know for sure this was the situation because I was querying it. I said this was not what we did, it was not our policy and I was told directly that, yes, it was the policy; I was a civil servant and I must follow it. We will accept intelligence that has come from torture as long as we do not do the torture ourselves in accordance with the legal advice of Sir Michael Wood which I was given on that occasion.

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 22 July 2004, which in my 20-year career was the last telegram I sent before I was sacked, I challenged Sir Michael Wood's legal advice. I pointed out that he appeared not to have taken into account article 4 of the convention about complicity in torture. I presume the Joint Committee is aware of the human rights situation in Uzbekistan and the record of that country for torture. My team investigated scores if not hundreds of cases involving the arrest of political dissidents in Uzbekistan. I never came across a single case in which torture was not credibly alleged. I do not believe in shock value so I will not enumerate them, but the most horrible forms of torture imaginable were always used against dissidents under questioning in Uzbekistan. In early 2003 the United Nations Special Rapporteur on Torture, Professor Theo van Boven, produced an official UN report.

Q99 Chairman: We are straying a little beyond our terms of reference.

Mr Murray: I do not agree.

Q100 Lord 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 United Kingdom to take steps to minimise the risks of torture?

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 Uzbekistan, we could be sure with almost 100 per cent certainty that any piece of intelligence coming to us from an Uzbek interrogation had been obtained by torture. The case I put to the FCO was that if you kept receiving weekly intelligence reports of interrogations in which you knew torture was routinely used and kept using them then without doubt you would be complicit in torture under article 4 of the UN convention. I have never met an international lawyer not in government employ - I have spoken to at least 30 or 40 on precisely this point - who does not agree with that.

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.

Q102 Dr 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 UK agencies make clear to foreign services the standards which they expect them to comply with." That does not say what you think it ought to say, but do you accept that their position is different from yours and that their current position is consistent with what Sir Michael Wood essentially said?

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 London for a meeting at which I was told the policy was that we could receive intelligence from torture and that that policy was not being publicly acknowledged.

Q111 Dr Harris: My final question is about what the UK Government did. There is torture going on in Uzbekistan, which is a separate question from whether we are using the intelligence. You were in charge of the embassy. Do you believe that part of your mission there was to seek to dissuade the Uzbek authorities from breaching the convention to which presumably they had signed up? If that was not part of your work there should you have considered your position earlier since you might have thought it unsustainable to carry out a mission that did not include one of the key things that it ought to have included?

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 CIA had started waterboarding. We have seen from the documents released in the United States in the past couple of weeks that they were waterboarding from July 2002. That is very much in the period I am talking about. I started to send my telegrams in the autumn of 2002 and it was then we were told by the US embassy in Tashkent that their view was that torture was okay in the war on terrorism.

Q115 Chairman: When did you start in Tashkent?

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 UK will have received intelligence from all of the 180 waterboarding sessions with Khalid Shaikh Mohammed and other suspects. I think it quite likely that was the trigger that led us to reconsider our policy on whether to receive intelligence from torture. We have an agreement with the CIA whereby that body and the SIS share all intelligence reports. When the CIA started to go in for torture we had either to resile from the agreement or go along with torture ourselves. My expectation is that the time when the UK first knew about waterboarding is the key to the answer to your question.

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 Uzbekistan, but effectively there was a chain that ended up with you in Tashkent via the CIA and MI6 in London. It is not like the allegations we have received regarding Pakistan, for example, where basically we are in the prison cell asking the questions and somebody may have been tortured. This is a much more remote chain of circumstances. Your argument is that because Uzbekistan is a country where torture is almost a way of life in that country evidence was being obtained by the CIA indirectly from the Uzbeks and then supplied to MI6 and the sum totality must have been known to ministers. Although we were not directly involved through that chain that is sufficient in your view to create an allegation of complicity by the UK in torture in Uzbekistan?

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 Pakistan, for example. It is not that MI5 operatives were acting independently; they were pursuing a policy framework set ministerially.

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.

Q126 Lord Dubs: Presumably, when you were in post in Uzbekistan you had frequent or occasional meetings with other British ambassadors in the region.

Mr Murray: Hardly ever. We met in Brussels on one occasion, but, no, we did not have regional meetings.

Q127 Lord Dubs: But you occasionally met other ambassadors even if it was just in Brussels. Did you ever discuss with your ambassadorial colleagues the issues that you have just raised with us; in other words, the change in British Government policy and so on?

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 Tashkent. He handed it back to me saying that it was a long resignation note. "Rather you than me" was truly a comment by one of my ambassadorial colleagues. I want you to think back to the period late 2002/early 2003 when we were gearing up to the war in Iraq with dodgy dossiers about weapons of mass destruction. At that stage to say intelligence was unreliable was quite a difficult thing to do internally because it cut across all the false intelligence on Iraqi issues as well. There was a feeling that if you raised these things you would get in trouble, as indeed I did.

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 Iraq initiatives you would get your head chopped off in career terms. I would like you to consider the following seriously: I was seeing intelligence in Uzbekistan whose purpose, as I have told you, was to exaggerate the Islamic threat in central Asia. Absolutely contemporaneously with the intelligence on Iraqi weapons of mass destruction, which exaggerated that threat, waterboarding was happening in the US which we now know was aimed largely at persuading al-Qaeda operatives to confess to a link with Iraq. There was a vogue for false intelligence and that built up the rationale for the war in Iraq, the alliance with Uzbekistan and other things.

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.

Q135 Lord Bowness: You suggested we should find out when the United States started water-boarding. First, did I understand you to say that information was given to you by the US embassy in Tashkent that they had started it? Second, you said that Sir Michael Wood had lots of legal advisers and when one referred to "Sir Michael Wood's legal advice" it was not necessarily his advice. Are you able to be specific on the record and tell the Joint Committee who was present at the meetings when you were told it had become acceptable to receive intelligence obtained from torture? Can you say specifically with whom you discussed this?

Mr Murray: On the first point, I did not suggest you should find out when the US started to waterboard because we more or less know it. I suggest you find out when the UK first knew the CIA was waterboarding and what steps the UK then took regarding receipt of intelligence from that activity. As to the second point, it was Sir Michael Wood himself. I merely said that he had a lot of people under him but nobody above him; there was no one higher to whom I could go, but Sir Michel Wood was himself present at the meeting giving this advice. The other person present was Linda Duffield, the director for wider Europe at the Foreign Office. She specifically said she had been asked to hold the meeting by Jack Straw and Sir Michael Jay. Also present was Matthew Kidd, head of the permanent under-secretaries' department, the liaison department between the FCO and MI6.

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 Uzbekistan in particular was not of any use to us that I could see.

Q142 Dr 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 US believed this was unfair and one-sided because they sent us more than we sent them and therefore it was not in our interests to abandon the universality principle. Is it the case that because we wanted to keep that arrangement we were prepared to say, "Thank you very much; we appreciate it. Please do not abrogate the agreement", indicating gratitude for the intelligence? You may not be able to say anything about that.

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 Uzbekistan, handed over a bottle of whisky and said, 'Thank you very much", but you were not present at any of those meetings?

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.

Q149 Dr 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 Uzbekistan, even via the US. I want you to be careful because that is a serious point. If you are making that point it goes to complicity rather than someone being a passive recipient which is what the government would have us believe they are.

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 Uzbekistan was one small parcel of a much bigger parcel of all sorts of stuff coming to MI6 from all over the world?

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 Uzbekistan, and a lot will be general intelligence that may have been obtained perfectly legitimately.

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 United States produced a top secret legal opinion to say that waterboarding, putting people in boxes with insects and slamming their heads against walls was legal. The sad truth is that it seems government organisations, civil services and government lawyers will go along with the most terrible and inhumane things that their political masters tell them to do and the percentage of people who stand up and say it is wrong, immoral, illegal and you should not do it is very small.

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 Uzbekistan. I will not mention the title in case I am accused of advertising, but I had to go through the clearance process that civil servants undergo when they publish a book. I have here the table of comments and the things that the Foreign Office asked me to change. It is fascinating that they did not ask for any changes to the account I give in the book about my meeting with Sir Michael Wood and Linda Duffield. They asked for only one very small change. The Foreign Office has not denied the facts that I am telling you.

Chairman: Thank you very much.


Memorandum submitted by Professor Philippe Sands QC

Examination of Witness

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 13 March 2003: "Your record of our meeting with HMA Tashkent recorded that Craig had said that his understanding was that it was also an offence of the UN Convention on Torture to receive or possess information under torture. I said that I did not believe that this was the case, but undertook to re-read the Convention. I have done so. There is nothing in the Convention to this effect. The nearest thing is Article 15 which provides [for the inadmissibility in evidence of any statement which is established to have been made as a result of torture]. This does not create any offence. I would expect that under UK law any statement established to have been made as a result of torture would not be admissible as evidence." In your evidence to us you say that, "In a formal and limited sense Mr Wood's response is correct, but it seems not to address the issue in the round ..." Is Sir Michael Wood's legal advice incorrect because it fails to mention the offence of complicity under article 4?

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 8 December 2005 in which the main speech was given by Lord Bingham. I refer in particular to paragraph 47. That issue arose directly in argument. It is one thing for article 15 to exclude the possibility of relying on torture evidence, as one might call it, in legal proceedings, but it is quite another to raise the question whether it can be used for other purposes. Lord Bingham said: "If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and if possible arrest the terrorist who planted it. There would be a flagrant breach [of the obligation not to torture] for which the United Kingdom would be answerable, but no breach of [other obligations of the convention]. Yet the Secretary of State accepts that such evidence would be inadmissible [in court proceedings]." The key sentence is: "This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings"; in other words, a tiny door is open to use in certain limited circumstances material that may have been obtained by torture, but that does not mean that all material used or obtained in all circumstances does not cross the line into complicity. The grey, complex area is: at what point does the systematic receipt of information cross the line into complicity?

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.

Q158 Dr 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 UK." They are just saying that is the position and they rely on that. They do not have to work very hard to do that, do they?

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? In Pakistan we have MI6 and MI5 and a clear allegation of torture in prison. Here we have Uzbeks who do the torturing; the information goes to the CIA and the CIA send it to MI6, effectively laundering the information. Presumably, they take out some of the source material and say, "This is what we have found out." Is there a break in the chain there?

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 Uzbekistan, Mr Murray said that an MI6 operative would go there once a year and say, "Thank you very much." He stopped that and started to make representations to the Uzbeks to stop torturing. Does that change the position when we have no direct line to the Uzbeks other than via Mr Murray saying, "Don't torture"?

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 Ambassador in Tashkent or through a third government or private actor. There are lots of ways in which these things happen. I do not think that the chain of causality is the crucial issue. The question to ask oneself is: at what point does the act of an individual associated with the British Government cross the line into encouraging a particular pattern of practice?

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 United States and say, "We don't do this sort of stuff; that's not who we are", could be seen as a policy of encouragement, bringing individuals into complicity through turning a blind eye. I addressed that issue a little in a lecture given to Justice a couple of years ago when the facts were less clear but when we could begin to speculate at what point turning a blind eye constituted complicity. When you cross that line and encourage another state's actors to engage in acts of torture you are at risk of being complicit in that torture and caught by article 4.

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 US situation where the facts are now clearer.

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 UK became a party to the Convention Against Torture in October 1998, so anything before that date would not have been covered by the rule in article 15. It would have come about very late in Mrs Thatcher's term. I doubt that there would have been a written policy one way or the other on this issue. The obligation in international law not to torture is a relatively recent one, at least in having a specific convention to deal with it, and I think we are moving to a situation where probably even the drafters of that convention did not fully envisage the types of scenarios that we are now discussing. It would not have been at the forefront of their minds. I went through the whole negotiating history of the convention and this issue never came up. That indicates to me that we are in a new area looking in the cracks of the convention to see where this is dealt with.

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 United States that we will happily receive such information and "go ahead and do it" absolutely, yes. Again, it turns on the specific facts. It would be very surprising given the closeness of the relationship between Britain and the United States, for example, if the authorities in Britain were unaware of some change of practice in the US. It is probably no coincidence that these issues began to arise in June/July 2002. Frank Rich wrote an excellent op-ed piece in the New York Times last Sunday in which he drew the connections between all of this and the famous Downing Street memo. We have very close relations between British and American intelligence services. There was a big meeting between them in July 2002. It would be very surprising if there were not conversations around the kinds of issues you are addressing. If they did take place the content of those conversations could contribute to a situation in which the scenario you have just identified would amount to complicity.

Q176 Baroness Prashar: I have two hypothetical questions. First, if the UK intelligence services provide information and questions to foreign intelligence services in a country with a bad record who they know to be torturing detainees would the provision of such information constitute complicity? I have a second question.

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.

Q178 Baroness Prashar: The second scenario is that if the UK intelligence services sent interrogators to question a detainee who was known to have been tortured by their interrogators, would that constitute complicity?

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.

Q179 Mr Sharma: Leaving aside the case of Binyam Mohamed, what evidence is there in the public domain that any UK personnel were aware of the change in US policy and practice?

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 to Baghdad and Abu Ghraib by US interrogators and lawyers on 30 August of that year. On 14 September of that year the commanding officer in Baghdad, General Sanchez, adopts a new regulation giving effect to these forbidden techniques: sleep deprivation, stress positions, hooding, nudity, dogs and so on, all Guantanimo techniques. They are used thereafter in Baghdad for a limited period of time. The facts surrounding the court martial of Col Mendonca occurred on precisely those days, 14, 15 and 16 September. What emerged in the course of the hearing but has never been teased out was that a British Army legal adviser appeared to receive information in relation to the legal advice and change of policy in the United States. That appears to have migrated down to Basra, so you can directly track the chain.

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 US position on the applicable standards changed much earlier: 7 February 2002. At that crucial moment of change the President of the United States adopted an executive decision which said that any detainee caught in the war on terror - anyone alleged to be al-Qaeda - had no rights under the Geneva conventions. We now know that that was done to open the door to what are called EITs - enhanced interrogation techniques - otherwise known in more modern parlance as torture. Although there was some public information as of 7 February 2002 - we already knew by that date that there had been a change in US policy - the full details of President Bush's decision were not made publicly available. I would be astonished if the British Government did not know the full details of that change of policy because they were already at that point involved in joint operations in Afghanistan. They must have known that a different standard was being applied in relation to the treatment of detainees.

Q182 Chairman: Can you say definitively what was the earliest date that this information was available to the UK? We can suspect it was the same day.

Professor Sands: I can only say definitively that it was by 14 September 2003. I can say as a matter of fact that someone in the UK authorities must have known, but I suspect that it was as early as 7 February 2002. I would be very surprised if no one in the UK authorities was aware that by 1 August 2002 there had been a significant change in US practice because that was when waterboarding began under those legal advices. But I cannot say to you as a matter of fact I am aware there was actual knowledge.

Q183 Chairman: Can you answer Mr Murray's question which he put to us in evidence: when did the UK first become aware of waterboarding being used by the US?

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 United Kingdom had an involvement in relation to their identification or questioning were being subjected to interrogations by CIA operatives under the new legal framework decided as early as 7 February 2002. I think the crucial period for the Joint Committee to look at is from 7 February to, say, 1 October 2002.

Q184 Mr Timpson: Earlier you touched very briefly on the recent release of the four torture memos by President Obama in the US and the debate now taking place in the United States on what to do with that evidence in terms of criminal investigation or an inquiry and what form that inquiry would take. Should we in the UK be putting potential criminal prosecutions to one side? Should we be holding an independent inquiry into complicity and torture by UK personnel?

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 United States is enormous and it is inevitable that there will be some sort of inquiry. Before and during that inquiry materials will come out which will shed light not only on the UK but the many other states that co-operated in various ways with the United States in that period. That will inflame the situation in those other countries. It would be better for the United Kingdom to be seen to move ahead proactively under its own steam, not pushed by third countries, and say that this was, as President Obama puts it, a dark chapter in our history; let us shed some light on it and then move on. I think it is better for countries to do that themselves than to wait for others to push them into doing it. My answer is that I think there is enough out there that requires investigation.

Q185 Mr Timpson: You say that regardless of the US decision we in the UK should get on with an independent inquiry?

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 with the UK's position?

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 UK personnel operating, for example, according to the Sir Michael Wood doctrine?

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 CIA and MI5 operatives, the lawyers or ultimately, one supposes, ministers? How on earth will they co-operate with the inquiry when potentially they are at risk of prosecution?

Professor Sands: It is a very difficult issue that was faced in a very dramatic way by South Africa back in the mid-1990s; it was faced by Chile. What they decided to do in different ways was essentially to begin with a non-criminal process leaving open the possibility of criminal process to follow in due course. It was done essentially for that reason. The decision-making was premised on the right approach, namely that it is in the better interests of society as a whole to get more rather than less information out sooner rather than later.

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 Chile. You will be aware that the truth process in Chile was eventually followed by criminal investigations, prosecutions and convictions.

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 United States where Senator Leahy is going through exactly this process of questioning. It is a really difficult question. Anyone who says that these issues are easy and it is black and white is not being straight. Senator Leahy has proposed that to get out all of the material there should be some sort of truth commission in which there will be limited immunity for a short period of time but then, depending on what comes out, the matter may go to a special prosecutor appointed by the Attorney General. That has not got off the ground yet though it has some support, but it recognises the reality of the situation you are addressing.

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 US is smart at coming up with rules of engagement that encourage people to come forward. I think a lot of people want to come forward in the US. I heard the question put earlier to Mr Murray. I suspect that there are a lot of people in the United Kingdom who also would wish to come forward but are very uncomfortable about doing so for a range of different reasons.

Q195 Chairman: So, we need to change the rules of the game again?

Professor Sands: No comment.

Q196 Lord 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 the United States. I should know the answer to the following question but I do not. Would someone who could show he had been the victim of serious ill treatment by perpetrators at a senior level have a civil remedy - I do not know whether it would fall under the Alien Tort Claims Act or otherwise - in the federal courts of the United States, quite apart from these difficult questions about criminal prosecutions?

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 Canada. There have been payments in compensation, a full public apology and full accounting. He has brought a civil proceeding in the United States and it has got nowhere because federal judges have said it is a national security matter over which they cannot exercise jurisdiction. Astonishingly, the Supreme Court of the United States has declined to allow that case to be challenged before that court. At this point the position appears to be that there is a national security bar to those cases of a civil character proceeding in US federal courts. That may change with the change of administration. This predates the change in administration.

Chairman: This brings us to the end of the public evidence session. Professor Sands, thank you very much.