52.
I accept the broad thrust of the appellants’ argument on the
common law. The principles of the common law, standing alone, in my
opinion compel the exclusion of third party torture evidence as
unreliable, unfair, offensive to ordinary standards of humanity and
decency and incompatible with the principles which should animate a
tribunal seeking to administer justice. But the principles of the common
law do not stand alone. Effect must be gi ven to the European
Convention, which itself takes account of the all but universal consensus
embodied in the Torture Convention. The answer to the central question
posed at the outset of this opinion is to be found not in a governmental
policy, which may change, but in law.
Inhuman or degrading treatment
53.
The appellants broaden their argument to contend that all the
principles on which they rely apply to inhuman and degrading treatment,
if inflicted by an official with the requisite intention and effect, as to
torture within the Torture Convention definition. It is, of course, true
that article 3 of the European Convention (and the comparable articles
of other human rights instruments) lump torture and inhuman or
degrading treatment together, drawing no distinction between them.
The European Court did, however, draw a distinction between them in
Ireland v United Kingdom (1978) 2 EHRR 25, holding that the conduct
complained of was inhuman or degrading but fell short of torture, and
article 16 of the Torture Convention draws this distinction very
expressly:
“Article 16
1. Each State Party shall undertake to prevent in any
territory under its jurisdiction other acts of cruel,
inhuman or degrading treatment or punishment which
do not amount to torture as defined in article 1, when
such acts are committed by or at the instigation of or
with the consent or acquiescence of a public official or
other person acting in an official capacity.
In
particular, the obligations contained in articles 10, 11,
12 and 13 shall apply with the substitution for
references to torture or references to other forms of
cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without
prejudice to the provisions of any other international
instrument or national law which prohibit cruel,
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