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I welcome the ban on evidence gained through torture


The law lords verdict last week merely strengthened our existing policy, writes Charles Clarke

Tuesday December 13, 2005
The Guardian

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 interest.
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, individual cases".
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
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