34 Tainted by Torture: Examining the Use of Torture Evidence | 2018 COUNTER-TERRORISM AND 'TORTURE EVIDENCE' Whilst international human rights law and jurisprudence has steadily moved towards an absolute prohibition on torture and its resulting evidence, the same cannot always be said for political and cultural attitudes. Over recent decades, the political rhetoric around torture in the context of national security has represented a significant challenge to human rights law, including the prohibition on torture. Programmes like 24 and Homeland, where ‘good guy’ Western intelligence agents torture ‘bad guy’ terrorists in order to obtain crucial information, effectively made torture in the context of terrorism part of Western pop culture. Far from being confined to the screen, torture really was being carried out by Western state officials, 176 which scandals such as the treatment of prisoners in Abu Ghraib demonstrated all too well. The USA went so far as to attempt legal justification for the use of torture against so­called ‘enemy combatants’ in the now infamous torture 177 memos. The global threat of terrorism has resulted in a significant increase in the sharing of intelligence information between states, some of which will have been procured through torture. This tainted evidence has been used in a wide variety of contexts, including as the basis for immigration decisions, applying administrative orders on terror suspects and in some extradition hearings and criminal prosecutions. Even where a country’s exclusionary regime applies to ‘torture evidence’ obtained in another country, it can be difficult to apply this in practice. Invariably, it will be extremely difficult for an individual to raise even a prima facie case that the evidence was obtained as a result of torture. The clandestine nature of interrogations adds an extra dimension of complexity because the applicant will normally have no knowledge of the actual circumstances in which a particular statement was procured. Also, it will be implausible for a defendant to be in a position to demonstrate why a particular statement should be subject to challenge, other than by way of generalised evidence about the likelihood of torture in a particular country or context. Given the national security confidentiality that tends to surround such proceedings, it is important to note that the applicant will often not have access to the statements or be in a position to know their providence. 178 MOUNIR EL MOTASSADEQ In 2005, a Moroccan student residing in Germany, Mounir El Motassadeq, was convicted by the Hamburg Supreme Court of belonging to a terrorist group and assisting in the September 2001 terrorist attacks on the World Trade Centre. El Motassadeq was convicted on the basis of statements from three individuals who were held in US custody in an undisclosed location after US authorities gave summaries of the interrogations of these individuals to German authorities. The defence challenged the admissibility of these statements on the grounds that they may have been obtained by torture. Although the Court ruled that evidence obtained by torture carried out by officials of third party states was not admissible 179 under German domestic law, the Court effectively shifted the burden of proof to the defence by ruling that, because it could not be proven that the evidence had been obtained under torture, the evidence was admissible. For more detail on the Court’s reasoning, see paragraph 72 above. The Court was widely criticised for this decision by international NGOs, such as Amnesty International, and the UN Committee Against Torture’s fifth periodic report on Germany in 2011 stated 180 that Germany should refrain from ‘automatic reliance’ on the information from intelligence services of other countries. Despite this criticism and multiple appeals, El Motassadeq is currently serving a 15 year prison sentence. A AND OTHERS V SECRETARY OF STATE FOR THE HOME DEPARTMENT (NO 2) 181 In 2001 the United Kingdom created a legal regime (outside of the criminal law) for non-nationals suspected of 182 terrorism but who could not be deported or extradited. This allowed, among other things, the indefinite detention 183 of suspected terrorists who had been certified by the Home Secretary as posing a threat to national security. The Home Secretary’s decision to certify a person had to be based on a reasonable belief as to the threat posed and a reasonable suspicion that the person is a terrorist. This belief or suspicion could be based on a wide range of evidence, including intelligence received from foreign states. In one of a series of legal challenges to this regime, the UK courts had to decide whether it was permissible for the Special Immigration Appeals Commission to take account of evidence which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of British authorities. The Commission dealt with appeals against the Home Secretary’s immigration decisions in national security cases and it had the power to cancel certificates, including where there were not reasonable grounds for the Home Secretary’s belief or suspicion. The Commission and Court of Appeal concluded that the fact evidence had, or might have been, procured by torture inflicted by foreign officials (without the complicity of the British authorities) did not render it legally 184 inadmissible; this was simply relevant to the weight to be given to the evidence. Ultimately the UK’s highest court, the House of Lords, rejected this and decided that such evidence could not be admitted: ‘The principles of the common law, standing alone, […] 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 given to the European Convention, which itself takes account of the 185 all but universal consensus embodied in the Torture Convention’.