Last Friday's front-page article could have created the impression that
the law lords' decision to ban evidence obtained by torture has undermined the
government's counter-terrorism policy (Torture ruling leaves terror policy in
chaos, December 9). This is simply wrong. In fact, I welcome the decision, which
gives clarity about an extremely important and very difficult issue that
requires more than an ill-informed reaction.
This government has consistently been clear in condemning torture in both
principle and practice. Moreover, the government does not present to court
evidence that is believed to have been obtained by torture.
It is important to be clear about what the law lords ruled and equally what
they did not. The question this judgment addressed was whether or not there was
an absolute bar on the use of evidence obtained by torture, even in those cases
where our agencies cannot know the circumstances under which intelligence has
been acquired. And crucially, the judgment addressed the threshold for
determining whether such evidence should be excluded. This is a complex issue.
As Lord Hope said: "Condemnation is easy. Finding a solution to the question is
much more difficult." I think the solution found by the majority of the Lords
strikes an appropriate balance, both practicable and serving the public
First, they held that there is an "exclusionary" rule precluding the use of
evidence obtained by torture. However, they held it was perfectly lawful for
such information to be relied on operationally, and also by the home secretary
in making executive decisions. The effect of this is simply to replace the
government's own stated policy - namely not to rely on evidence believed to have
been obtained by torture - by an "exclusionary" rule of law. This welcome
decision will not change the government's current practices, but it will provide
greater legal authority.
Secondly, the law lords ruled that the onus was not, as the appellants had
argued, on the government to prove a negative - that evidence was not obtained
by torture. The test established by the Lords is that the special immigration
appeals commission (Siac) must exclude evidence only if it is established, on
the balance of probabilities, that it was obtained by torture. This is the
difference between a test that would have been all but impossible to operate in
practice, and one which ensures we can continue to place before Siac evidence
from intelligence gathered abroad.
Following the Lords' judgment, some commentators have suggested that the
effect of the decision could be the release of many terror suspects from
detention or control orders. This is simply not the case. Indeed Lord Brown said
that it "seems unlikely that the exclusionary rule ... will affect many, if any,
The judgment strengthens the legal framework which seeks the correct
balance between the right of the accused and the right of the citizen. The
exclusion of evidence obtained by torture from Siac hearings will not change,
weaken or detract from our ability to fight terrorism.
The government strives to preserve our fundamental right to be protected
from terrorism, while at the same time upholding human rights and opposing the
use of torture.
· Charles Clarke MP is home secretary Homeoffice.gov.uk
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