my noble and learned friend Lord Bingham of Cornhill and there is
nothing in it with which I would wish to disagree.
LORD HOPE OF CRAIGHEAD
My Lords,
100. I have had the advantage of reading in draft the speech of my
noble and learned friend Lord Bingham of Cornhill. His account of the
background to this case is so complete that I hesitate to say anything that
might detract from it. But it is one thing to condemn torture, as we all
do. It is another to find a solution to the question that this case raises
which occupies the moral high ground but at the same time serves the
public interest and is practicable. Condemnation is easy. Finding a
solution to the question is much more difficult. It requires much more
thought. So it is on that aspect of the case in particular, after looking at
the history, that I should like to concentrate.
Background
101. Torture, one of most evil practices known to man, is resorted to
for a variety of purposes and it may help to identify them to put this case
into its historical context. The lesson of history is that, when the law is
not there to keep watch over it, the practice is always at risk of being
resorted to in one form or another by the executive branch of
government. The temptation to use it in times of emergency will be
controlled by the law wherever the rule of law is allowed to operate.
But where the rule of law is absent, or is reduced to a mere form of
words to which those in authority pay no more than lip service, the
temptation to use torture is unrestrained. The probability of its use will
rise or fall according the scale of the perceived emergency.
102. In the first place, torture may be used on a large scale as an
instrument of blatant repression by totalitarian governments. That is
what was alleged in R v Bow Street Metropolitan Stipendiary
Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, where the
picture presented by the draft charges against Senator Pinochet which
had been prepared by the Spanish judicial authorities was of a
conspiracy. It was a conspiracy of the most evil kind – to commit
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