62.
I regret that the House should lend its authority to a test which
will undermine the practical efficacy of the Torture Convention and
deny detainees the standard of fairness to which they are entitled under
article 5(4) or 6(1) of the European Convention. The matter could not
be more clearly put than by my noble and learned friend Lord Nicholls
of Birkenhead in the closing paragraph of his opinion.
Disposal
63.
The Court of Appeal were unable to conclude that there was no
plausible suspicion of torture in these cases. I would accordingly allow
the appeals, set aside the orders made by SIAC and the Court of Appeal,
and remit all the cases to SIAC for reconsideration in the light of the
opinions of the House.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
64.
Torture is not acceptable. This is a bedrock moral principle in
this country. For centuries the common law has set its face against
torture. In early times this did not prevent the use of torture under
warrants issued by the King or his Council. But by the middle of the
17th century this practice had ceased. In 1628 John Felton assassinated
the Duke of Buckingham. He was pressed to reveal the names of his
accomplices. The King’s Council debated whether ‘by the Law of the
Land they could justify the putting him to the Rack’. The King, Charles
I, said that before this was done ‘let the Advice of the Judges be had
therein, whether it be Legal or no’. The King said that if it might not be
done by law ‘he would not use his Prerogative in this Point’. So the
judges were consulted. They assembled at Serjeants’ Inn in Fleet Street
and agreed unanimously that Felton ‘ought not by the Law to be tortured
by the Rack, for no such Punishment is known or allowed by our Law’:
Rushworth, Historical Collections (1721) vol 1, pages 638-639.
65.
Doubt has been cast on the historical accuracy of this account:
Jardine, ‘Use of Torture in the Criminal Law of England’, (1837), pages
61-62. The precise detail does not matter. What matters is that never
again did the Privy Council issue a torture warrant. Nor, after 1640, did
-47-
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents