Human rights torture challenge thrown out by High Court

Binyam Mohamed
Image caption Binyam Mohamed: Alleged MI5 complicity in his treatment

The High Court has rejected an attempt by the UK's human rights watchdog to rule guidance on torture is unlawful.

But in a linked judgement, the court said British personnel should not be involved in the hooding of suspects.

The Equality and Human Rights Commission said the guidance did not do enough to stop personnel becoming involved in torture by foreign powers.

The court rejected that argument, saying the guidance was meant to be "practical" help to field officers.

In July 2010, the government published "consolidated guidance" to intelligence and security personnel which sets out their legal duties on torture - and how to avoid situations where they may be accused of collusion.

The document's publication came after a long legal battle over allegations that British officers knew that former Guantanamo Bay detainee Binyam Mohammed had been tortured.

The revised guidance said that the UK had banned torture and other cruel, inhumane and degrading treatments - but it also stressed that other countries may not observe the same standards.

The EHRC claimed the document was flawed because it did not tell officers in the field to take into account the "real risk" that someone might be tortured by a foreign power before deciding whether or not to co-operate on a particular operation.

But ruling in the government's favour, Sir Anthony May and Mr Justice Keith said in their judgement that the torture guidance was not a legal catch-all but practical guidance.

"It is not a treatise on English criminal law," said Sir Anthony May. "What matters is how the document would be read and applied by individual intelligence officers.

"The document makes clear that, in all relevant instances other than where there is no serious risk of [torture] the officer must not proceed at all [with co-operation with a foreign power] or the matter must be referred to senior personnel or Ministers."

Hooding ruling

In the related case, Alaa' Nassif Jassim Al-Bazzouni, a former Iraqi detainee, said he had been hooded and abused by British troops in 2006 - and that the new guidance would not stop it happening again.

Hooding - typically using a sandbag - was banned in the UK in 1972 after being used against paramilitary suspects in Northern Ireland.

The new guidance reiterates that ban - but says British officers may be permitted to work with foreign powers who hood a suspect during arrest or transit, providing there is no harm to the detainee's health.

But the judges said that section should change because officers in the field would probably not be capable of assessing the affect that hooding would have on a detainee.

A spokesperson for the government said that it welcomed the court's decision that the main guidance on torture was sound.

"We are considering the implications of the rest of the judgment," said the spokesman. "To be clear, the Ministry of Defence has banned the hooding of detainees by its personnel in all circumstances."

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