Pressed by Reprieve’s litigation, Coalition Government promises to publish new, legitimate torture policy ‘very shortly’; High Court therefore declines to consider lawfulness of current secret policy

June 28, 2010

The High Court today confirmed that Reprieve had good reason to seek judicial review of the Government’s ‘torture policy’ – guidance given to intelligence field agents on responding to evidence of torture — but refused to proceed with the claim on the basis of a new Government promise made to the court.

In a decision delivered this afternoon, Mr Justice Collins agreed prisoners currently in torture chambers across the world may be directly affected by any UK complicity in their abuse, and that UK ‘torture policy’ must therefore be urgently reviewed.

Yet Mr Justice Collins was persuaded to take no immediate action in light of the Government barrister’s new promise to the court that the guidance would be released to the public ‘very shortly’. James Eadie QC insisted that the litigation had ‘focused the government’s mind’ on the issue of torture. While refusing to name a firm date, he insisted the release was ‘prospectively imminent’. Reprieve is following up, demanding a precise publication date.

The Court accepted the Government’s assurance and suggested that Reprieve may re-launch the challenge when the Government fulfils its pledge. Former Prime Minister Gordon Brown originally promised to publish the new guidance in March 2009 but failed to do so. The secret 2004 policy therefore remains in force and is widely believed to be illegal.

The Coalition Government declined to admit whether the 2004 policy unlawfully promoted or endorsed complicity in torture. The Coalition is apparently adopting former Foreign Secretary David Miliband’s decision to continue to cover up this 2004 torture policy.

Clive Stafford Smith, Director of Reprieve, said: 

“I am glad that the pressure we have brought has focused the Government’s attention on adopting a legitimate torture policy, but we need a date certain, rather than more delay and obfuscation. It is disappointing that the Coalition Government continues to hide the crimes of the past. Indeed, their plan to reveal the new policy underlines the fact that advice given to agents cannot sensibly be deemed ‘classified’. Disclosing legal advice hardly betrays a national secret. The only reason for keeping the 2004 policy secret is to save the senior staff at MI5 who sanctioned the advice from embarrassment. Equally, it cannot take a year to up with new advice – we could have written it for them in an afternoon. It is desperately unsatisfactory if agents in the field are still required to rely on the 2004 policy.”

Cori Crider, Legal Director at Reprieve said: 

“Our Government wriggled out of a hearing today with one promise: that a new ‘torture policy’ would be published ‘very soon’. Reprieve has been looking out for this policy since March 2009, when Prime Minister Gordon Brown made the same promise. So the question, now the promise has been repeated in open court, is simple. Where’s the policy? When is ‘immediately prospective’? It is cold comfort to an abused prisoner in a cell in Lahore or Nairobi or Sana’a to hear that it is ‘coming’. We need clarity now.”

CASE BACKGROUND

Under cross-examination in court, an intelligence agent known as ‘Witness B’ had referred to ‘guidance’ from his superiors governing his interviews with Binyam Mohamed and others. Reprieve launched legal proceedings on February 23 to challenge such guidance, given to MI5/MI6 field agents by the British government.

Reprieve sought a judicial review to assess the legitimacy of the current guidance, which has existed 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 – British agents were instructed that they had no obligation to take any action if they witnessed torture. Second, there was an amended ‘2004 policy’, in force from 2004 until the present day. The Labour Government emphatically refused to reveal it to the public, underlining the widespread belief that it must have also been illegal. Disappointingly, the Coalition Government has thus far declined to retreat from this position.

Third, there is the ‘new policy’, promised by Prime Minister Gordon Brown on March 19, 2009, which was delayed during the election, and has yet to surface 16 months later.

For further information, please contact Katherine O’Shea at Reprieve’s Press Office katherine.oshea@reprieve.org.uk 020 7427 1099.

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: info@reprieve.org.ukWebsite: www.reprieve.org.uk

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