CAT/C/GBR/CO/5 Ambiguities in the legislation 10. The Committee is concerned by remaining ambiguities in the State party’s legislation, which appear to provide an “escape clause” to the absolute prohibition of torture. It notes in particular that, despite its previous concluding observations (CAT/C/CR/33/3, para. 4(a)(ii)), the State party has not yet repealed Section 134 (4) and (5) of the Criminal Justice Act 1988 which provides for the defence of “lawful authority, justification or excuse” to a charge of official intentional infliction of severe pain or suffering and the defence of conduct that is permitted under foreign law, even if unlawful under the State party’s law (art. 2). The State party should repeal Section 134 (4) and (5) of the Criminal Justice Act 1988 and ensure that its legislation reflects the absolute prohibition of torture, in accordance with article 2, paragraph 2, of the Convention, which states that no exceptional circumstances whatsoever may be invoked as a justification of torture. Consolidated guidance to intelligence officers and service personnel 11. The Committee welcomes the publication in 2010 of the Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (Consolidated Guidance) as an important step toward ensuring transparency and accountability in relation to the actions of its personnel operating overseas and their relationships with foreign intelligence services. The Committee further welcomes the delegation’s assurance that this framework is “absolutely not intended as allowing torture to proceed” but rather to “prevent it”. It remains concerned, however, that ambiguities in the Consolidated Guidance remain, noting in particular the possibility of seeking assurances in situations where actions of foreign security and intelligence services pose a serious risk of torture or other ill-treatment to “effectively mitigate that risk to below the threshold of a serious risk” (Consolidated Guidance, paras. 17-21) (arts. 2 and 3). The Committee urges the State party to reword the Consolidated Guidance in order to avoid any ambiguity or potential misinterpretation. The State party should in particular eliminate the possibility of having recourse to assurances when there is a serious risk of torture or ill-treatment, and require that intelligence agencies and armed forces cease interviewing or seeking intelligence from detainees in the custody of foreign intelligence services in all cases where there is a risk of torture or illtreatment. The State party should also ensure that military personnel and intelligence services are trained with regard to the absolute prohibition of torture and illtreatment. Closed material procedures 12. Notwithstanding the State party’s position that the Justice and Security Act 2013 will strengthen the oversight and scrutiny of the security and intelligence agencies, it is concerned that it also extends the use of closed material procedures in civil proceedings where national security is at risk. The Committee notes that the decision was made despite the European Court of Human Rights ruling in A and Others. v. United Kingdom (Application no. 3455/05) 2 that the Special Advocate System used in closed material procedures was insufficient to safeguard detainees’ rights, as well as other severe criticisms, including from the Special Rapporteur on torture and other cruel, inhuman or 2 4 See http://www.refworld.org/docid/499d4a1b2.html