18. Submission from Amnesty International
Amnesty International is writing to you in response
to your call for evidence in connection with your inquiry into
the UK's compliance with, and implementation of, the UN Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (Convention against Torture).
Amnesty International welcomes this opportunity
to provide the JCHR with an update to the organisation's report
published on 26 November 2004 and entitled "United KingdomBriefing
for the Committee against Torture" (AI Index: EUR 45/029/2004)
on Amnesty International's most serious concerns about the UK's
compliance with the Convention against Torture.
Amnesty International wishes to draw the JCHR's
attention, in particular, to the following.
UK AUTHORITIES' MEASURES
JULY 2005 BOMBINGS
On Friday 5 August 2005, Tony Blair, the Prime
Minister, announced certain measures that the UK authorities would
be proposing in the aftermath of the July 2005 bombings in London.
The Prime Minister indicated that such proposals as "necessary"
were being "urgently examined" and would be forthcoming.
He also stated that administrative measures which do not necessitate
primary legislation would be put in place "with immediate
Amnesty International is deeply concerned that
some of the measures that the UK authorities are seeking to implement
are inconsistent with the independence of the judiciary, and undermine
the rule of law and fundamental human rights, including:
the absolute prohibition of torture
or other ill-treatment, and the principle inherent to such prohibition
according to which a person should never be sent anywhere where
she or he risks being subjected to torture or other ill-treatmentthe
principle known as non-refoulement enshrined in, inter
alia, Article 3 of the Convention against Torture;
the right to seek and enjoy asylum,
including the right of all persons who seek international protection
to have their asylum claim individually and fully considered in
fair and satisfactory procedures consistent with international
human rights and refugee law and standards. Any intention to exclude
someone from refugee status should be considered in the context
of regular refugee status determination procedures, and should
be subject to fundamental principles of procedural fairness, including
the right to appeal against the decision to exclude, and to remain
in the UK while that appeal is being considered.
Specifically, the right not to be subjected
to torture or other ill-treatment, which includes the right not
to be removed to a country or territory where one would be at
risk of such treatmentthe protection against refoulementapplies
to all individuals, irrespective of whatever offence they may
have committed or are suspected of having committed, and is a
rule of customary international law binding on all states. It
has also been codified in treaty law, including in the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), most provisions of which have been given effect
in UK law through the Human Rights Act 1998.
Amnesty International is also deeply disturbed
by the Prime Minister's remarks about entirely warranted decisions
of the domestic courts to strike down deportation orders in cases
of individuals whom the UK authorities intended to deport to countries
where they would have been at risk of torture or other ill-treatment.
Amnesty International considers that, rather than attacking the
decisions of the judiciary and the rule of law in this way, the
Prime Minister should commit his government to compliance in this
regard with the UK's obligations under international law.
Amnesty International is also gravely concerned
about the "new approach" signalled by the Prime Minister
in his statement with respect to deportation orders. According
to such "new approach", when the UK authorities wish
to expel a person to a country where there is substantial risk
that she or he would be tortured or otherwise ill-treated, the
UK authorities would obtain so-called "diplomatic assurances"
from the authorities of the country to which the person concerned
is to be sentor would negotiate memoranda of understanding
with the authorities of that countryto the effect that
the individual would not be tortured or otherwise ill-treated
after return to that country.
The organisation considers that both such "diplomatic
assurances" and memoranda of understanding would amount to
a circumvention of the principle of non-refoulement which
is part and parcel of the absolute prohibition of torture or other
ill-treatment. Accordingly, Amnesty International does not accept
that diplomatic assurances or memoranda of understanding can ever
relieve the sending state from its obligation not to forcibly
return a person to a country or territory where they would be
at risk of torture or other ill-treatment.
In addition, Amnesty International deplores
any possible future attempt to amend the Human Rights Act 1998
in the way foreshadowed by the Prime Minister as a way of purportedly
obviating the obstacles which the courts have put in the way of
the Prime Minister and his government with respect to deportations.
The right to be free from torture or other ill-treatment, and
the principle of non-refoulement inherent to such rightis
inalienable, inviolable and non-derogable. Any attempts by the
UK authorities to circumvent the jurisdiction of the courts domestically
and prevent them from upholding such a fundamental right would
also clearly fall foul of the UK's obligations under international
law, including the Convention against Torture.
The organisation is also extremely concerned
at the Prime Minister's announcement that "anyone who has
participated in terrorism, or has anything to do with it anywhere
will be automatically refused asylum in the country". In
light of Amnesty International's long-standing concern about the
vagueness and breadth of the purported definition of "terrorism"
enshrined in the Terrorism Act 2000, the organisation is concerned
that the Prime Minister's announcement amounts to circumventing
international refugee law. Amnesty International is concerned
that persons may be excluded, who have been involved in acts of
armed political groups or any other political activities which
are not of such nature and severity that they currently should
be excluded from refugee status under the 1951 Convention relating
to the Status of Refugees (Refugee Convention) and its 1967 Protocol.
The limited grounds for exclusion under the Refugee Convention
include crimes against peace, war crimes, crimes against humanity
and non-political crimes committed outside the country of asylum
prior to admission to that country as a refugee. In any event,
even where someone is excluded from refugee status under the Refugee
Convention, the UK authorities are nonetheless bound by customary
international law and provisions set out in, inter alia, the Convention
against Torture and the ECHR, to respect the principle of non-refoulement,
The absolute prohibition of torture or other
ill-treatment is a norm of customary international law, binding
on all states. The absolute prohibition is also enshrined in treaties
to which the UK is a party including Article 7 (and 4) of the
International Covenant on Civil and Political Rights (ICCPR),
Article 3 (and 15) of the ECHR, Article 37 of the Convention on
the Rights of the Child and the Geneva Conventions of 1949 and
its Additional Protocols of 1977. This prohibition encompasses
an absolute prohibition on the forcible return of a person to
any state, where there is a risk that they would be subjected
to torture or other ill-treatment.
As stated by the Council of Europe's Commissioner
for Human Rights, "the weakness inherent in the practice
of diplomatic assurances lies in the fact that where there is
a need for such assurances there is clearly an acknowledged risk
of torture and ill-treatment."
The organisation considers that diplomatic assurances
are both evasive and erosive of the absolute legal prohibition
of torture or other ill-treatment in general and of the prohibition
of refoulement in particular, in addition to being inherently
unreliable, morally questionable and in practice ineffective.
Amnesty International considers that before
a person is forcibly returned to a particular country, s/he should
have access to a competent, independent and impartial court, which
should make the final decision, in a fair proceeding, about the
presence or absence of such a risk.
In the face of allegations that a person will
be at risk of torture or other ill-treatment in the country to
which they will be sent, the burden of proof should be on the
sending authorities to show that they would not be at risk. The
court should require the sending authorities to present reliable
and credible evidence as to the absence of a risk.
Diplomatic assurances with respect to torture
or other ill-treatment cannot and should not be compared with
Diplomatic Assurances sought in cases in which a person risks
the death penalty. Unlike torture or other ill-treatment, the
death penalty is not per se prohibited under international
law, and states carry it out openly as a punishment, under their
own laws. Amnesty International opposes the death penalty absolutely,
but as long as the death penalty is a lawful sanction under international
law, diplomatic assurances with respect to the death penalty simply
acknowledge the different legal approaches of two states and make
an exception to one state's declared policies to accommodate the
concerns of the other.
Torture or other ill-treatment, in contrast,
are practised almost invariably by states which deny practising
them. They torture or otherwise ill-treat in secret and in violation
of legally binding agreements which they joined, as well as of
their own laws. It would be absurd for a sending state to make
even a legally binding "diplomatic assurances" agreement,
(let alone accept lower-level assurances) with a receiving state,
where the only reason to make this agreement is the latter state's
failure to live up to other binding agreements, in human rights
treaties, on the very same issue.
It should be noted that the distinction is found
in various Council of Europe treaties which make provision for
obtaining diplomatic assurances in cases of a risk of imposition
of the death penalty but make no such provision in cases where
there is a risk that the person to be returned faces torture or
In light of the above, Amnesty International
is deeply concerned at the UK authorities' announcement in August
of this year of the conclusion of a so-called "Memorandum
of Understanding Between the Government of the United Kingdom
of Great Britain and Northern Ireland and the Government of the
Hashemite Kingdom of Jordan Regulating the Provision of Undertakings
in Respect of Specified Persons Prior to Deportation", as
well as the UK authorities' ongoing attempts to conclude further
similar agreements with countries such as Egypt and Algeria, among
Amnesty International oppose the use, reliance,
proffering and admission in any proceedings of information which
has been or may have been obtained as a result of a violation
of the absolute prohibition of torture or other ill-treatment,
by or against any person anywhere, except in proceedings against
a person suspected of responsibility for a violation of the prohibition,
as evidence that such information was obtained.
As the JCHR may know, Amnesty International,
together with 13 other national and international organisations,
has been granted leave to jointly intervene in the conjoined appeals
before the Law Lords in the cases of A and others v Secretary
of State for the Home Department and A & Others (FC)
and Another v Secretary of State for the Home Department from
a Court of Appeal of England and Wales Judgment of 11 August 2004
(Law ReportsCourt of Appeal:  EWCA Civ 1123; 
1 WLR 414). The decision by Amnesty International and the other
organisations to intervene in this appeal is motivated by grave
concern about the undermining and circumvention of the absolute
prohibition of torture or other ill-treatment and the attendant
obligations that give it effect.
Amnesty International is concerned that the
UK is increasingly resorting to measures that effectively bypass
its obligations in respect of the absolute prohibition of torture
or other ill-treatment. Since the November 2004 issuance of the
Committee against Torture's Concluding Observations upon their
examination of the UK's Fourth periodic report on the measures
taken to implement the provisions of the Convention against Torture,
the UK authorities have continued to assert their right to use
statements in judicial or other proceedings obtained as a result
of a violation of the prohibition of torture or other ill-treatment
so long as UK agents have neither directly procured such statements
or connived in their procurement.
This interpretation was condemned by the UN
Committee against Torture in November 2004. It recommended that
the UK authorities ensure that they will not rely on or present
"evidence" obtained through torture in any proceedings.
Rather than complying with the specific recommendation
of the Committee against Torture in respect of the use of statements
obtained as a result of a violation of the prohibition of torture
or other ill-treatment, the UK's Secretary of State for the Home
Department will instead seek to defend before their Lordships
the propriety of the above-mentioned Court of Appeal's ruling.
Amnesty International considers that the UK
authorities' position on the use of evidence procured through
torture or other ill-treatment is effectively circumventing the
absolute prohibition of such treatment, rather than fulfilling
the UK's international obligations under the Convention against
Torture and other relevant international human rights law and
standards. The organisation considers that such obligations include
the taking of effective measures to prevent torture or other ill-treatment
wherever it occurs, including by applying an exclusionary rule
to prevent such information from being adduced in judicial or
other proceedings. The UK's stance has given a "green light"
to torturers around the world, whose unlawful conduct would find
not only an outlet but also a degree of legitimacy in UK courts.
Amnesty International also considers that the
use as evidence in legal proceedings of statements obtained as
a result of a violation of the prohibition of torture or other
ill-treatment would bring the administration of justice into disrepute,
and provide a cloak of legality for that which is unlawful.
Finally, Amnesty International is concerned
that the UK authorities' position has effectively brought about
a conflict between the UK's international obligations flowing
from the prohibition of torture or other ill-treatment and domestic
Following the reaching of the above-mentioned
memorandum of understanding with Jordan, and pursuant to the UK
authorities' ongoing attempts to conclude others with at least
Algeria and Egypt, at least nine people were arrested in August
of this year.
Amnesty International is deeply concerned at
the mental and physical health status of these people who were
held until March 2005 under Part 4 of the Anti-terrorism, Crime
and Security Act 2001 (ATCSA), were then subjected from March
to August 2005 to so-called "control orders" under the
Prevention of Terrorism Act 2005 (PTA), and since August 2005
have been detained on the grounds that their removal from the
UK will take place within a reasonable time and that the UK authorities
are taking steps with due diligence to effect such removals (that
is, thanks to the reaching of the above-mentioned memorandum of
understanding with Jordan and the UK authorities' ongoing attempts
to agree further similar agreements with Egypt and Algeria, at
In light of public statements issued by Birnberg
Peirce & Partners in August 2005, Amnesty International understands
that seven men of those represented by the above-mentioned firm
of solicitors were suddenly arrested on 11 August 2005 and have
since been detained separately very far away from their families
(for those who are married), their lawyers and crucially their
doctors, in Long Lartin prison in Worcestershire and Full Sutton
prison near York.
The organisation further understands that one
of them was taken from the psychiatric hospital where he had been
an inpatient, since his release from Broadmoor Hospital, under
a "control order" on 11 March of this year. This individual
is one of two men who were moved from Belmarsh prison to Broadmoor
Hospital in 2004 after three years of indefinite detention without
charge or trial and a dramatic deterioration of their mental and
Amnesty International shares the solicitors'
deep concern at being informed that those detained at Long Lartin
prison were placed on suicide watch. These include a third man
who had been released from Belmarsh and subject to virtual "house
arrest" in 2004 because his mental health had been so affected
by the protracted incarceration without charge or trial. To Amnesty
International's knowledge most, if not all of these men, are asylum-seekers
or refugees; so too are their families; and most of them are victims
According to the information made public by
their solicitors, those detained at Full Sutton prison were held
in the so-called Special Secure Unit that had been closed down
a decade ago on the basis that it was unfit for human habitation.
Reports indicate that cells in that unit are even smaller than
those in Belmarsh prison. The windows look out onto an exercise
yard so dark that lights have to be kept on at all times. In August
2005, the above-mentioned solicitors stated that the unit was
literally covered in cobwebs and that it remained unfit for humans.
Amnesty International is deeply concerned at
what appears to be the UK authorities' continued disregard of
the recent serious psychiatric history of each of these individuals
and the reasons for that history, and at the consequences which
their renewed detention will almost inevitably have on their mental
and physical health.
Amnesty International has long been concerned
about the detention of people who have sought asylum in the UK.
In June 2005, the organisation published a 94-page report entitled
"United KingdomSeeking asylum is not a crime: detention
of people who have sought asylum" (AI Index: EUR 45/015/2005)
which we have attached to this letter for your ease of reference.
The above-mentioned report examines the increased use of detention
both at the beginning and at the end of the asylum process and
questions whether the UK is meeting its obligations with respect
to the right to liberty and the right of people to be treated
with dignity and humanity under international refugee and human
rights law and standards.
Amnesty International documented the hidden
plight of those who have sought asylum in the UK and are detained
solely under Immigration Act powers. Detention is an extreme sanction
for people who have not committed a criminal offence. It violates
one of the most fundamental human rights protected by international
law, the right to liberty.
Amnesty International is concerned at the denial
of justice suffered by many people as a result of their detention
being in many cases effectively arbitrary and, therefore, unlawful.
Individuals are often taken into detention on the basis that a
bed is available within the detention estate, rather than on considerations
of necessity, proportionality and appropriateness.
In light of the above, the organisation is concerned
at the human cost of the increased use of detention in the UK.
Amnesty International considers that detention is not being carried
out according to international standards, is arbitrary and serves
little if any purpose at all in the majority of cases where measures
short of detention would suffice.
Amnesty International found that many people
were detained far away from their families or friends, in often
remote locations and in grim, prison-like establishments. Some
detention facilities are former prisons, others are purpose built
as removal centres. At the time of being taken into detention,
the individuals concerned were not told for how long they would
Those interviewed told Amnesty International
that while in detention they felt abandoned and demoralised. Several
of them complained of being subjected to racist and other verbal
abuse while in detention. Some interviewees experienced great
difficulty in relaying their stories even months after their release
from detention. A number of them appeared to be suffering from
In theory, the UK has a policy of non detention
of particular vulnerable groups, including torture survivors.
However, Amnesty International is concerned that those whose age
or physical or mental health or circumstances make them unfit
for detention are nevertheless being detained.
OF UK AGENTS
As detailed in its above-mentioned briefing
to the Committee against Torture, Amnesty International has expressed
serious concern, inter alia, about allegations of unlawful
killings, torture or other ill-treatment and other violations
of international human rights and humanitarian law by UK forces
at the time when the UK was recognised as an occupying power in
Iraq, namely prior to the official handing of power to the Interim
Iraqi Government in June 2004. 
Amnesty International notes that in its Concluding
Observations in November 2004 the Committee against Torture expressed
concern at the UK authorities' assertion that certain provisions
of the Convention against Torture could not be applied to actions
of the UK in Afghanistan and Iraq. The Committee stated that the
Convention applied to all areas under the de facto control
of the UK authorities.
Similarly, the Committee against Torture recommended
that the UK government "should ensure that the conduct of
its officials, including those attending interrogations at any
overseas facility, is strictly in conformity with the requirements
of the Convention [against Torture] and that any breaches of the
Convention that it becomes aware of should be investigated promptly
and impartially, and if necessary the State party should file
criminal proceedings in an appropriate jurisdiction".
Amnesty International continues to be concerned
about the UK authorities' assertion that human rights law (including
key provisions of the Convention against Torture) does not bind
the conduct of UK agents and armed forces in Iraq and Afghanistan.
30 Sepember 2005
35 Please note that Amnesty International hopes to
be able to submit its concerns in response to the JCHR's call
for evidence on the human rights compatibility of the provisions
of the draft Terrorism Bill 2005 published on 15 September 2005,
as well as the JCHR's inquiry on "Counter-terrorism Policy
and Human Rights". Therefore, the organisation is confining
its comments in this letter to concerns arising in respect of
the UK obligations under the Convention against Torture, which,
are the subject of the present JCHR inquiry. Back
See in particular pp 26 to 33. Back