Universal Jurisdiction in Torture via Section 134 UK Criminal Justice Act 1988 √

By 28 December 2017KEY ARTICLES
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Universal Jurisdiction in Torture via Section 134 UK Criminal Justice Act 1988

First Published (LinkedIn) on 28th December 2017
Joseph-S-R-de-Saram

Joseph S R de Saram (JSRDS)

Information Security Architect / Intelligence Analyst / Computer Scientist / Human Rights Activist / COMSEC / SIGINT / TSCM
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20160802 122227 Joseph de Saram Serious Injuries from Torture

“THE POLICE BEAT ME UP”

I am in the process of writing a number of articles in relation to ‘Evidence of Military Intelligence Operation was Destroyed via Psychiatric Fraud’ and this article Universal Jurisdiction in Torture via Section 134 UK Criminal Justice Act 1988 is one that I will be referring to. I will insert initial evidence into this article however.

Human Rights Watch

The prohibition against torture is a bedrock principle of international law.

Torture, as well as cruel, inhuman or degrading treatment, is banned at all times, in all places, including in times of war. No national emergency, however dire, ever justifies its use. No one may ever be returned to a place where they would face torture. Many countries and armed groups nonetheless have engaged in torture.

Human Rights Watch documents the use of torture all over the world. We are committed to pressing government authorities to act to prevent torture, as well as bringing those who engage in torture to justice. We also work to ensure that victims of torture obtain redress, including an enforceable right to fair and adequate compensation, and full rehabilitation.

The UK Criminal Justice Act 1988:-

Criminal Justice Act 1988

An Act to make fresh provision for extradition; to amend the rules of evidence in criminal proceedings; to provide for the reference by the Attorney General of certain questions relating to sentencing to the Court of Appeal; to amend the law with...

and note the fairly broad drafting of its terms.

The following paragraphs are reproduced in their entirety and I have added my comments in square parentheses.

Legislation

(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

INTENTIONAL INFLICTION, SEVERE PAIN, PURPORTED PERFORMANCE, OFFICIAL DUTIES

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(2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if—

(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence

(i) of a public official; or

(ii) of a person acting in an official capacity; and

[ACQUIESCENCE – MEANING ‘RELUCTANT CONSENT’ OR ‘WITHOUT PROTEST’]

(b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.

(3) It is immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or an omission.

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20151026_000000 JDSGB Evidence of Cervical Spine Injuries 02

20151026_000000 JDSLK Asiri Surgical Hospital MRI Im1-Im8 A

20151218_000000 Evidence of Facial Injuries after Torture

20151218_054228_01 Serious Facial Injuries After Torture b850b9ebb2_00975_annotated

20151220_000000 Evidence of Facial Injuries after Torture

20151220_084548_02 Serious Facial Injuries After Torture 7bdf68eec3_02888_annotated

20151218_000000 Evidence of Finger Hand and Wrist Injuries After Torture

20151218_054228_01 Serious Finger Hand Injuries After Torture b850b9ebb2_00975_annotated

20151220_000000 Evidence of Finger Hand and Wrist Injuries After Torture

20151220_084548_02 Serious Finger Hand Injuries After Torture 7bdf68eec3_03175_annotated

(4) It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.

[NO PROOF IS [ABLE TO BE] FORTHCOMING BECAUSE THE PERPETRATORS NEVER HAD ANY.]

[NO-ONE ACTED UNDER ANY LAW, NO-ONE ACTED UNDER ANY LAWFUL AUTHORITY, NO-ONE HAD ANY JUSTIFICATION AND NO-ONE HAD ANY EXCUSE UNDER ANY LAW.]

(5) For the purposes of this section “lawful authority, justification or excuse” means—

(a) in relation to pain or suffering inflicted in the United Kingdom, lawful authority, justification or excuse under the law of the part of the United Kingdom where it was inflicted;

(4) It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.

[NO PROOF IS [ABLE TO BE] FORTHCOMING BECAUSE THE PERPETRATORS NEVER HAD ANY.]

[NO-ONE ACTED UNDER ANY LAW, NO-ONE ACTED UNDER ANY LAWFUL AUTHORITY, NO-ONE HAD ANY JUSTIFICATION AND NO-ONE HAD ANY EXCUSE UNDER ANY LAW.]

(5) For the purposes of this section “lawful authority, justification or excuse” means—

(a) in relation to pain or suffering inflicted in the United Kingdom, lawful authority, justification or excuse under the law of the part of the United Kingdom where it was inflicted;

[NO-ONE ACTED UNDER ANY LAW, NO-ONE ACTED UNDER ANY LAWFUL AUTHORITY, NO-ONE HAD ANY JUSTIFICATION AND NO-ONE HAD ANY EXCUSE UNDER ANY LAW.]

(b) in relation to pain or suffering inflicted outside the United Kingdom

(i) if it was inflicted by a United Kingdom official acting under the law of the United Kingdom or by a person acting in an official capacity under that law, lawful authority, justification or excuse under that law;

[NO-ONE ACTED UNDER ANY LAW, NO-ONE ACTED UNDER ANY LAWFUL AUTHORITY, NO-ONE HAD ANY JUSTIFICATION AND NO-ONE HAD ANY EXCUSE UNDER ANY LAW.]

(ii) if it was inflicted by a United Kingdom official acting under the law of any part of the United Kingdom or by a person acting in an official capacity under such law, lawful authority, justification or excuse under the law of the part of the United Kingdom under whose law he was acting; and

[NO-ONE ACTED UNDER ANY LAW, NO-ONE ACTED UNDER ANY LAWFUL AUTHORITY, NO-ONE HAD ANY JUSTIFICATION AND NO-ONE HAD ANY EXCUSE UNDER ANY LAW.]

(iii) in any other case, lawful authority, justification or excuse under the law of the place where it was inflicted.

[NO-ONE ACTED UNDER ANY LAW, NO-ONE ACTED UNDER ANY LAWFUL AUTHORITY, NO-ONE HAD ANY JUSTIFICATION AND NO-ONE HAD ANY EXCUSE UNDER ANY LAW.]

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(6) A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.

Third Party Articles

I refer to an excellent article written by Charlotte Wright of Kingsley Napley

Legal update: Universal Jurisdiction - Which foreign crimes can be tried in the UK? | Criminal Law Blog | Kingsley Napley

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Previously we have described how, by the application of the principle of universal jurisdiction, certain offences, which can be broadly categorised as “war crimes”, can be prosecuted in the UK regardless of where they were committed and whether there is any nexus to the UK.

The offences falling into this category and which might be prosecuted in the UK are largely covered by three acts:

  • Geneva Conventions Act 1957
  •  Criminal Justice Act 1988
  • International Criminal Court Act 2001

Criminal Justice Act 1988 (“CJA”)

Section 134 of the CJA provides for the offence of torture as follows:

(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties

Subsection (2) provides for an offence where a person “intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence” of a public official.

The offence can be committed “in the United Kingdom or elsewhere”, and “whatever [the accused’s] nationality”. As such it is an offence of universal jurisdiction.

The offence is triable only on indictment, and the maximum sentence is life imprisonment (CJA s134(6)). The Attorney General’s consent is required to prosecute (CJA s135).

as well as Justice UK:-

Torture in UK law - Justice

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Torture is illegal, right?

Yes. The use of torture has been contrary to common law for several centuries, and the UK was well ahead of many other European jurisdictions in abolishing its use. Although the common law prohibited torture, however, the Privy Council continued to issue torture warrants until Felton’s case in 1628 and it was not until the Long Parliament in 1640 that the practice was formally abolished. In Scotland, torture was prohibited by section 5 Treason Act 1708.

In addition to the established common law provisions, section 134 Criminal Justice Act 1988 makes it an offence for any public official to ‘intentionally inflict severe pain or suffering on another in the perfomance … of his official duties’. This provision was introduced to honour the UK’s commitments under the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention).

Under international law, torture is not only prohibited under such instruments as Article 3 of the European Convention on Human Rights (ECHR) and the Torture Convention, but it has become recognised as ius cogens, a preemptory norm of international law that binds all states whether they have signed instruments such as the Torture Convention or not.((See eg Prosecutor v Furundzija [1998] ICTY 3, 10 December 1998, paragraphs 147-157)) The prohibition against torture under Article 3 ECHR is also one of the few rights that cannot be derogated from in a state of emergency under Article 15.

Torture is something that only happens in other countries. Why is it a human rights issue in the UK?

For several reasons.

First, the various international instruments prohibiting torture not only make it unlawful for UK officials to commit torture but also forbid, for example, the UK sending people to countries where they face a real risk of torture. Although the government maintains that it would never return someone to a country where they face a risk of torture, the Human Rights Act 1998 is regularly relied upon in extradition and deportation cases to challenge the government’s assessment of whether a risk of ill-treatment exists. Even more controversial is the UK government’s negotiation of Memoranda of Understanding (MoUs) with countries such as Jordan and Libya, in order to deport suspects to countries where torture is known to be used. JUSTICE and Human Rights Watch are jointly intervening in the case of Secretary of State for the Home Department v OO in the House of Lords at the end of October to argue that MoUs cannot safely be relied upon.

Secondly, UK cooperation with other countries in the field of counter-terrorism and the UK involvement with the ‘War on Terror’ has raised serious questions about whether decisions about deportations and control orders have been based partly on evidence gathered under torture in other countries, including the ‘enhanced interrogation techniques’ used by US officials at Guantanamo Bay and elsewhere.((See eg Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House 105 Columbia Law Review 1681-1750 October, 2005; Phillipe Sands, Torture Team, Penguin, 2008)) This was the key issue in the famous ‘Torture Evidence’ case (A and others v Secretary of State for the Home Department (No 2)) in 2005.(([2005] UKHL 71)) In some cases, there have even been claims that UK officials were present during interrogations in other countries in which torture was used, most recently in the Binyam Mohammed case in the High Court in August.(([2008] EWHC 2048 (Admin)))

Thirdly, the conduct of the UK forces themselves, in particular the treatment of prisoners and the death of Baha Mousa, has highlighted defects in the guidance given to British soldiers concerning the proper treatment of detainees. Particularly striking is the apparent failure of the army to draw soldiers’ attention to the 1972 army directive prohibiting the ‘five techniques’ that were held by the European Court of Human Rights to breach Article 3 in Ireland v UK.(((1978) 2 EHRR 25))

Fourthly, there is an issue about the jurisdiction of British courts to punish torturers and provide redress to victims. Although the Pinochet case in 1999 established that foreign heads of state could not claim immunity from prosecution, and the 2005 prosecution of an Afghan warlord in the Old Bailey showed the ability to exercise universal jurisdiction for torture in criminal cases, the doctrine of state immunity in civil cases has still prevented many victims of torture from suing foreign governments in British courts to obtain redress against their torturers. ((Ron Jones v Saudi Arabia [2006] UKHL 26)) A private members bill is currently before Parliament to create an exception to allow such civil actions to proceed.

Fifthly, the scope of Article 3 ECHR extends more broadly than torture of detainees. Although torture is clearly outlawed in the UK, the concept of inhuman and degrading treatment has clear relevance to how detainees are treated in prisons, asylum detention centres, mental health facilities and youth detention centres. For example, the High Court recently warned that guidance on the use of ‘pain compliance techniques’ used on young people in secure training centres may be contrary to Article 3 ECHR.((C (A Minor) v Secretary of State for Justice [2008] EWHC 171 (Admin)))

What’s the difference between torture and inhuman and degrading treatment?

The difference lies in the severity of the ill-treatment. Electrocuting a detainee, for instance, is plainly and obviously torture. By contrast, preventing a detainee from sleeping by use of bright lights and loud noises might not be sufficiently severe to qualify as torture, but it would likely qualify as inhuman treatment. In both cases, torture can be physical or non-physical (eg staging the execution of a family member).

The exact threshold is relative but in both cases, the ill-treatment must go beyond the ‘inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment’.((Labita v Italy (ECtHR, 6 April 2000), paragraph 120)) The European Court of Human Rights has also made clear that the distinction ‘depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim’.((Selmouni v France (1999) 29 EHRR 403, paragraph 100))

Note also that the inhuman or degrading treatment need not be intentional, i.e. the state need not intend to cause pain and suffering in order for the conduct to breach Article 3 ECHR((See eg Pretty v United Kingdom (2002) 35 EHRR 1)), eg the government’s failure to provide support to destitute asylum seekers under section 55 Nationality Immigration and Asylum Act 2002.((R (Limbuela) v Secretary of State for the Home Department (2005) UKHL 56))

Why does it matter?

The Torture Convention prohibits both torture, on the one hand, and inhuman and degrading treatment, on the other. However, its provisions sometimes draw a distinction, so that the UK government has – for instance – sometimes argued that the bar against returning a suspect to a risk of ‘lesser’ kinds of ill-treatment is not as absolute as the bar against returning a suspect to torture.

Article 3 of the European Convention on Human Rights prohibits both torture and inhuman and degrading treatment equally, however. In Saadi v Italy, for instance, the Grand Chamber of the European Court of Human Rights rejected the UK government’s argument that a lesser degree of protection applied where the suspect is a risk to national security, noting that ‘such an approach is not compatible with the absolute nature of the protection afforded by Article 3’. Since Article 3 is directly enforceable in UK courts under section 6 Human Rights Act, it is likely that the exact distinction is less relevant in UK law.

Where can I get more information?

UN Committee Against Torture

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

Freedom from Torture

REDRESS

Human Rights Watch report on diplomatic assurances

War crimes in Sri Lanka: call for sanctions & application of universal jurisdiction

War crimes in Sri Lanka: call for sanctions & application of universal ... jurisdiction to investigate, charge and prosecute Sri Lankan war

UN Committee Against Torture

The Committee Against Torture (CAT) is the body of 10 independent experts that monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by its State parties. ...

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

The CPT organises visits to places of detention, in order to assess how persons deprived of their liberty are treated. These places include prisons, juvenile detention centres, police stations, holding centres for immigration detainees, psychiatric hospitals, social care homes, etc ...

Freedom from Torture

Too little change: ongoing torture in security operations in Sri Lanka Ten years on from the end of Sri Lanka’s civil war, Freedom from Torture has documented evidence of torture of its Tamil citizens....

REDRESS

To seek justice for survivors of torture; to combat impunity for governments and individuals who perpetrate torture; and to develop and promote compliance with international standards....

Human Rights Watch report on diplomatic assurances

The most comprehensive account yet assembled of the human rights abuses associated with CIA secret detention and extraordinary rendition operations....
Joseph-S-R-de-Saram

Joseph S R de Saram (JSRDS)

Information Security Architect / Intelligence Analyst / Computer Scientist / Human Rights Activist / COMSEC / SIGINT / TSCM
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