BEWARE THE GIFT OF POISON FRUIT circumstances of a serious risk of torture, the guidance does not prohibit cooperation with a foreign agency. Rather, it provides that concerns should be directed to senior personnel and to Ministers, who may consider the risk on their own terms. Yet when the guidance was challenged by the UK Human Rights Commission on the basis that the rules fail to meet the UK’s obligations in both UK and international law, and consequently opened up officers to criminal liability, 38 the court disagreed. It ruled the guidance “makes clear that, in all relevant instances other than where there is no serious risk of CIDT (Section 2 of the table), the officer must not proceed at all (Section 1) or the matter must be referred to senior personnel or Ministers”. 39 The court was also not persuaded there was any material difference between a ‘serious risk’ or ‘real risk’ in this context. Recognising that the guidance might lead to confusion, and hence inconsistency in practice of executive agencies, in 2013 the UN Committee against Torture recommended the guidance be reworded to avoid ambiguity and the possibility that assurances from foreign services would suffice to permit cooperation where serious threats are identified.40 Inevitably, there are significant shortcomings with any guidelines which leave uncertainty over whether any officer may use tainted information. Without sufficient legal precision, national actors may find themselves interpreting the text in a way that was not intended. The ambiguous language identified by the Committee against Torture could fail to give intelligence and security actors the detailed guidance necessary to ensure that they act in a way which is compatible with international and domestic law. While the guidance does not purport to be a statement of law, inconsistencies in the text and lack of specificity in legal descriptions used could serve to undermine the purpose to prevent UK complicity in torture. UK High Court, The Equality and Human Rights Commission, v. The Prime Minister, Judgement, 3 October 2011, [2011] EWHC 2401 (Admin). 39 Ibid., at para.61. 40 CAT, Concluding observations on the fifth periodic report of the United Kingdom, adopted by the Committee at its fiftieth session (6–31 May 2013), CAT/C/GBR/ CO/5, para.11. 38 30