Reprieve launches legal action against UK government to challenge the lawfulness of secret ‘torture policy’ memoranda

February 23, 2010

Reprieve will today begin legal proceedings challenging the British government’s infamous series of ‘torture policies’: official guidance for agents interviewing prisoners held abroad.

Under cross-examination in court, an intelligence agent known as ‘Witness B’ referred to ‘guidance’ from his superiors governing his interviews with Binyam Mohamed and others. The judicial review will assess the legality of this guidance, which is understood to exist in the form of three policies:

First, there was the ‘2002 policy’, instituted on January 11 2002, when British agents first began to witness the abuse of prisoners. This was partially revealed in the 2005 Intelligence and Security Committee report. Second, an amended ‘2004 policy’ was in force from 2004 until the present day. This, like the 2002 version, is widely believed to have been illegal, and the government has emphatically refused to reveal it to the public. Third, there is the ‘new policy’, promised by the Prime Minister on March 19, 2009, which has yet to surface 11 months later.

Crucially, Foreign Secretary David Milliband insists that the 2004 guidance should be kept from the public even if ordered to be disclosed in court proceedings. Given that the ISC revealed significant parts of 2002’s guidance, and that the PM has promised to publish the newest version, there can be only one reason for keeping the 2004 guidance secret: it is highly embarrassing to the government, because it reflects official sanction for actions of questionable legality or morality.

Reprieve has formally asked the UK Government to prove the lawfulness of its guidance to intelligence personnel. The Government responded with broad assertions that its policy is lawful because it does not sanction the use of intelligence obtained through torture as evidence in legal proceedings.

The Government has therefore:

1) Declined to consider whether the policy unlawfully promotes or endorses complicity in torture; and2) Failed to engage with the extensive and mounting evidence of complicity in torture by intelligence personnel.

Reprieve has therefore been forced to bring this litigation. Ten diverse examples of complicity are used to support the action: from British agents driving a prisoner around in a mobile interrogation unit in Iraq in the midst of his cycle of torture, to urging prisoners to cooperate with their abusers, to threats of rendition, to knowingly feeding questions to prisoners who were being mistreated.

Clive Stafford Smith, Director of Reprieve, said: 

“Advice given to agents cannot sensibly be deemed ‘classified’, as disclosing legal advice hardly betrays a national secret. Rather, depending on what the policy was, it exposes those who sanctioned the advice to immense embarrassment. Equally, it cannot take a year to come up with new advice – we could have written it for them in an afternoon. Agents in the field are still, apparently, required to rely on the 2004 policy. Meanwhile, the government is playing for time here, hoping that the issue can be punted past the election to the next parliament.”

Edward Davey, MP, said: 

“These documents can and must be released. The Government this timecan’t hide behind excuses that this would damage our relations with our countries – these are British documents about British policy. It’s clear Ministers will try and fob people off with the latest policy documents, not those from the past, and that will simply not wash.”

Clara Gutteridge, Secret Prisons Investigator at Reprieve, said:

 “Ex-prisoners have told us that they were interrogated by British agents from the very beginning of their time in the secret prisons. For men like Omar Deghayes, who came to the UK as a teenager fleeing from persecution in Libya, the worst moments were when they realised that British agents were not coming to their aid, but were in fact involved in their torture.”

Richard Stein of Leigh Day & Co said:

“There is compelling and copious evidence in the public domain that UK intelligence personnel have engaged with torturers in the interrogation of individuals detained in the “war on terror” in a manner that can only sensibly amount to complicity. The UK government still fails to come clean about the extent of its involvement in these crimes. It is right that the Court should now be asked to scrutinise the government’s guidance to its own intelligence personnel and assess whether this is as the result of officially sanctioned policy.”

Notes for Editors:

Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives.

Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.

Reprieve’s current casework involves representing 33 prisoners in the US prison at Guantánamo Bay, working on behalf of prisoners facing the death penalty, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’

ReprievePO Box 52742London EC4P 4WSTel: 020 7353 4640Fax: 020 7353 4641Email:

Reprieve is a charitable company limited by guarantee; Registered Charity No. 1114900 Registered Company No. 5777831 (England) Registered Office 2-6 Cannon Street London EC4M 6YH; Chair: Lord Bingham; Patrons: Alan Bennett, Julie Christie, Martha Lane Fox, Gordon Roddick, Jon Snow, Marina Warner