Following the attacks of September 11th 2001 the UK authorities responded by detaining a number of foreign nationals during December 2001 on suspicion that they were members of, or had links to, Al Qaeda. Their detention, without formal charges, was seen by many as an affront to human rights and a wholly disproportionate response by the authorities. Having appealed unsuccessfully to the Court of Appeal, (A (FC) and others v Secretary of State for the Home Department [2002] EWCA Civ 1502 and (later) [2004] UKHL 56) their case came before the House of Lords. On the 16th December 2004 the Law Lords, by a majority of eight to one, held that the detention of nine foreign nationals suspected of having links to Al Qaeda was unlawful and their Lords held that the detention of the foreign nationals in accordance with s 23 of the Anti-terrorism, Crime and Security Act 2001 was discriminatory and therefore breached the detainees’ rights to be treated comparably with UK citizens suspected of being linked to terrorism and terrorist activities.

Whilst welcoming the Law Lords ruling, it can be suggested that an opportunity to rule authoritatively on the issue of indefinite detention without trial was lost.

In March 2005 the Home Secretary, following lengthy Parliamentary debate, ordered the release of the suspects and subjected them to various control orders. The concerns of several human rights groups surrounding indefinite detention without trial have not, however, dissipated. There remains the prospect of grave restrictions on an individual’s liberty being imposed now not only on foreign suspects but also UK citizens, and questions concerning the legality of the detention now seem a moot point. A seemingly unresolved issue is whether or not the detention itself constituted torture, and the following discussion asks whether such detention without trial could constitute a form of torture, or at least inhuman or degrading treatment and therefore constitute a breach of Article 3 of the European Convention on Human Rights to which the UK is subject. It could, perhaps, even suggest that the UK authorities have implicitly made torture legal.

The word ‘torture’ is itself an extremely emotive term, often conjuring up images of
Medieval barbarity, or more recent Nazi atrocities. Contemporary human rights
discourse is often faced with significant legal and moral questions concerning the
treatment of criminal suspects. The United Kingdom’s past domestic anti-terrorist
responses have often been suspected themselves of breaching suspects’ rights and
liberties, this was most dramatically witnessed within recent history by the case of
Ireland v. UK in 1978 (2 EHRR 25), which concerned twelve individuals suspected of
being members of the Provisional IRA. They were interned without trial, under to the
Civil Authorities (Special Powers) Act, and subjected to interrogation techniques that
the European Court of Human Rights (ECtHR) regarded as being inhuman and
consequently a breach of Article 3 of the Convention.

Significantly, the ECtHR accorded the UK authorities some considerable
leeway in their treatment of the detainees, which can be accorded the term ‘margin of appreciation’, and decided not to declare the use of the techniques employed against the individuals torture, per se, given the ‘emergency’ then present within the province. What remains fundamental is that Article 3 of the Convention, (now also contained within the provisions of the Human Rights Act 1998), is a non derogable right and therefore there is no defence for the use of torture by the state, as is supported by Chahal v United Kingdom (1996) 23 EHRR para 79.

One must therefore examine what would we currently define as being torture. Is it as contentious a definition as the term terrorist? Is one left responding ‘well I know torture when I see it’. Other issues in coming to a usable definition include deciding whether we need to consider a subjective or rather an objective ‘harm- based’ approach; ie is the victim ‘suffering’ and indeed are they ‘suffering sufficiently’ before we can condemn an action as being ‘torture’?

From the jurisprudence established by the ECtHR ‘sufficient suffering’ does indeed seem to be the test. In Ireland v. UK, Judge Sekia stated that ill- treatment, to be considered as torture, ‘…must attain a minimum level of severity…the assessment of this minimum…depends on the circumstances of the case, such as the duration of the treatment, its physical or mental effects and in some cases the sex, age and state of health of the victim.’
Increasingly, state authorities employ more ‘sophisticated’ approaches to interrogate suspects; this can be traced back to the ‘psychological interrogations’ employed by the US military to great effect during the Vietnam War as reported in the work of Donald D’Zaragoles and Frank Snepp. To a greater extent the techniques employed by the UK against suspected members of the IRA were a form of psychological ‘torture’, a deliberate attack on the individuals mind rather than employing physical pain exclusively in an attempt to mentally ‘break’ the suspects into divulging information. The techniques included being photographed naked, the deprivation of food, water and sleep, being threatened with dogs and the use of ‘white noise’.

With reference to the foreign terrorist suspects referred to earlier, during their three-year detention a number of independent observers, including a team of eleven psychiatrists, noted a significant deterioration in mental health among detainees, which was linked directly to their indefinite detention without trial as reported by Alvaro Gil-Robles, Commissioner for Human Rights CommDH (2005) 6. The most conclusive evidence of the severe psychiatric trauma experienced by the detainees can be found in the report of Professor Ian Robbins (Consultant Clinical Psychologist, Traumatic Stress Service at St George’s Hospital, London) in ‘The Psychiatric Problems of Detainees under the 2001 Anti-Terrorism, Crime and Security Act’.

It concludes that, ‘[A]ll of the detainees have serious mental health problems which are the direct result of, or are seriously exacerbated by, the indefinite nature of the detention. The mental health problems predominantly take the form of major depressive disorder and anxiety. A number of detainees have developed psychotic symptoms, as they have deteriorated.’ (See page 8 of the report)
It can be argued that such psychological harm is evidence of at least inhuman treatment if not psychological torture. To justify this conclusion some of the facts surrounding the case of the foreign detainees must be considered. Primarily they are not UK nationals, and are therefore unfamiliar with the often complex, if not bewildering, English judicial system. They are detained on the mere suspicion of the UK authorities, not necessarily on evidence sufficient to satisfy a court of law. As Lord Hoffman noted in A (FC) and others v Secretary of State for the Home Department [2004] UKHL 56 at para 87 ‘ the suspect is not entitled to be told the grounds upon which he has been suspected.’ The individuals were then held without charge in a number of maximum-security establishments, including the media-styled ‘British Guantanamo Bay’ at HMP Belmarsh. There they faced the stark choice of either remaining in indefinite detention or returning to their state of origin, where they potentially faced death and/or physical torture.

Such circumstances clearly distinguish these individuals from those held awaiting trial on remand or deportation. In the case of Kudla v. Poland (2002) 35 EHRR 11 a Polish national who was suffering from chronic depression and a diagnosed personality disorder spent more than two years on remand and claimed his rights under Article 3 had been violated. The ECtHR rejected his claim on the basis that detention on remand was not in itself inhuman or degrading treatment. Whilst this may indeed be the case, as noted above with individuals held on remand, the distinction between the foreign detainees, ‘terror suspects’, and other individuals awaiting trial, sentence or deportation, is that the latter are engaged in a system which will, ultimately, though often following a prolonged delay, either convict, acquit or deport them. The foreign detainees were ultimately detained within a ‘legal limbo’, an indefinite detention without charge, or possible future release. In his report Prof. Robbins also noted the distinction and significant difference on an individual’s mental health. In acknowledging parallels between immigration detainees and the ‘terror suspects’, he observed that, ‘…the immigration detainees always have an end point in terms of a trial or court decision. The situation of indefinite detention with potentially no end point would suggest that the effects identified here will be greater. It is likely that there will be an even higher level of hopelessness and helplessness and a correspondingly higher level of mental health problems.’

A distinction could also be drawn here between the detainees and those enemy combatants and non-combatants interned during an armed conflict. A ‘war on terror’ is arguably not only a literal conflict between belligerent parties in different countries – or the same country, but it may be a continuing state of affairs the conclusion of which may never be reached! The possibility, therefore, of the individuals being released at a conclusion of hostilities between the belligerents seems highly unlikely in the immediate future – or even simply remote.

The frankly inadequate response of the UK authorities has been to refer to the provisions of the Anti-terrorism, Crime and Security Act which provide that the individual detainees are at liberty to return to their home state should they wish, that in essence they are detained only in a ‘three sided prison’. This is borne out by the fact that two suspects decided to return to their states of origin, one to France and the other to Morocco.

A serious issue arises from this argument however: primarily it concerns a legal point regarding their deportation. Following the case of Chahal v. United Kingdom the ECtHR ruled that an individual, though a terrorist suspect, could not be deported to his state of origin, ‘…whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another state, the responsibility of the contracting state to safeguard him or her against such treatment is engaged in the event of expulsion’ (See (1996) 23 EHRR 414 para 80) Deportation to face the death penalty is itself ‘torture’ and a violation of Article 3. This ruling would seem to suggest that the UK authorities, in failing to seek to deport these individuals are actually aware of possible successful legal challenges that could be raised. The UK authorities, it is suggested, are fully aware that these individuals, if returned to their home state, will be subjected to torture - a point echoed by Lord Nicholls of Birkenhead in his judgment.

Therefore, can it be argued that the UK authorities are ultimately seeking to ‘legally’ torture these individuals, if only by denying them the judicial due process guarantees? The evidence would seem to suggest so. Perhaps the most damning revelation arises from the fact that the evidence on which the UK authorities base their decisions to detain a suspect can legally be obtained by torture. In the case of A & Others v Secretary of State for the Home Department the Court of Appeal accepted that evidence gained by torture, provided not extracted by, or with the connivance of, UK agents, might be used in support of the Home Secretary’s suspicions albeit that the evidence would have to be assessed in the light of the circumstances of it’s obtaining. Arguably, this is nothing more than making torture, albeit by proxy, legal.

The right to liberty, personal security and a fair trial remain enshrined in our unwritten constitution and has a statutory basis in the form of the Human Rights Act 1998, and in Articles 5 and 6 in particular. Is this case, therefore, not only a form of ‘legal torture’ but also an affront to these values? As Lord Hoffman stated in the case of A (FC) and others 56, para 97,
‘[I]n my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.’

In conclusion one should be wary of the ‘public emergency’ justification of the authorities that leads to the conclusion that it would be impossible to deal with terrorism without, at the same time, limiting the freedom of citizens. Individuals suspected of conspiring, attempting or committing terrorist acts should be dealt with according to the ordinary criminal laws and afforded the same due process protections as any other criminal suspect. We depart from the fatalism that shrugs, ‘c’est la noveau guerre, c’est la nouveau terreur’, that seeks to make psychological torture legal.