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Fair Trials makes submission on the review of UK’s “torture guidance”

admin - November 6, 2018 - Torture

Fair Trials has made a submission to the Investigatory Powers Commissioner’s Office on the public consultation of the UK government’s review of the Consolidated Guidance. The Consolidated Guidance, also known as the “torture guidance”, is a document intended to prevent UK personnel from becoming involved in human rights abuses abroad. It sets out principles that govern the detention and interviewing of detainees overseas, as well as the passing and receipt of intelligence relating to those detainees.

Alarmingly, the guidance was first going to be rewritten behind closed doors, which raised concerns that the Government may try to ‘water down’ the protections in the document. Fair Trials, together with Reprieve, Redress, Amnesty International and Liberty, asked the UK government to open the guidance up to full public consultation, to which Fair Trials has now made a submission.

The UK’s involvement in torture and rendition puts the importance of the public consultation into the spotlight: two reports released by the parliamentary intelligence and security committee last June revealed that British intelligence agencies were involved in hundreds of cases of torture and rendition that occurred during the so-called ‘war on terror’. In other words, the guidance has failed to prevent UK personnel becoming involved in human rights abuses, and it is clear that significant change is needed.

Fair Trials’ submission is particularly focused on the guidance’s ability to sufficiently capture international standards of due process. We have concerns that the guidance does not make clear the crucial link between access to due process rights and the prevention of torture and cruel, inhuman or degrading treatment (CIDT). Pre-trial procedural rights, such as access to a lawyer and the right to challenge the lawfulness of detention without delay, play a vital role in safeguarding detainees against torture and CIDT, and denial of these rights acts as key indicators that a detainee may be at risk.

Yet some of these key indicators are missing from the guidance. For example, access to an independent medical examination is an internationally recognised standard for people who have been detained, as well as an important safeguard against the use of torture, yet this is not currently mentioned or considered in the guidance.

Another key concern is that the guidance does not make it clear that where there is a serious risk that intelligence has been obtained by torture or CIDT, the use or reliance on that intelligence is a violation of the UK's international and domestic legal obligations. In a recent report to the General Assembly for the Seventieth Anniversary of the Universal Declaration on Human Rights, the UN special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Nils Melzer, specifically highlighted the damage that intelligence exchanges have done to the prohibition on torture and highlighted that the exclusionary rule for evidence obtained by torture extends to intelligence exchanges.

Whilst sharing intelligence can be crucial to security operations, nothing permits States to shirk their legal obligations when it comes to the absolute prohibition on torture. Fair Trials welcomes the UK’s commitment to the absolute prohibition on torture and CIDT, and hopes that this will be a crucial opportunity to strengthen the UK’s policies when it comes to sharing intelligence and upholding the universal prohibition on torture.

Read Fair Trials’ submission to the Investigatory Powers Commissioners Office on the UK’s review of the Consolidated Guidance here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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