Evidence gathered by torture

In the war on terrorism, attention has focussed on the 650 or so men being held in Guantanamo Bay.

The British Attorney General is in Washington to continue discussions over the nine British citizens facing trial there, but Britain too is holding such suspects.

Here, 15 foreign nationals have been incarcerated without charge, trial or sentence under the government's emergency provisions. And now there's considerable concern over the grounds being used to hold them.

Britain is signed up to International law which requires that the courts reject any evidence gathered by torture. But as Peter Marshall discovered, that line no longer seems to be holding.

PETER MARSHALL:
In the war on terror suspects have been held in many nations, interrogated in varying circumstances and detained in secret locations. It's widely believed some have been tortured. Now it seems information from these torture sessions is being used as evidence in British courts.

UNNAMED WOMAN:
We have fallen below any international norm of legality. We have to climb back up, we can't descend lower.

UNNAMED WOMAN:
I think this leaves Britain in a shameful situation. It's basically gone to the bottom of the charts, with regards to human rights.

MARSHALL:
Three months after the attacks America, the Home Secretary declared Britain's own "time of public emergency" - a legal phrase paving the way for the detention without trial of foreign nationals suspected of links with terrorists. That was at the end of 2001. Many lawyers warned then that Britain was on a slippery slope. Now for the past three months, ten men detained under that new law have been appealing for their release to a special court. At the request of the security services, the court's hearings are often "closed", in secret session. But from some of the open sessions, we've glimpsed the type of evidence MI5 and MI6 are putting forward. Some will feel it shows that Britain is indeed on a slippery slope, and still sliding.

GARETH PEIRCE:
SOLICITOR FOR DETAINEES
There's absolutely no doubt in our minds that when what is talked about as intelligence to justify having secret hearings is information extracted by torture from detainees in countries that do not observe minimum human rights.

MARSHALL:
In the world of intelligence and national security, banal detail takes on sinister tones. The way a suspect uses a phone box, or greets a friend - this is the sort of stuff that's been heard in the open sessions of the special court that's trying the cases of the detainees.

In the coming weeks it will either approve or disapprove each individual's appeal against detention. There's no jury, just a panel of judges. In the open hearings detainees are encased behind reinforced glass. The Government's witnesses, security agents, are never seen. They speak from behind a curtain.

Using edited transcripts from one open hearing, we can see how the detainees' counsel broached the subject of torture. He raised allegations which had been publicised across the world's press. A security agent answering from behind the curtain claimed to be unaware of the reports.

LAWYER FOR DETAINEES COUNCIL (ACTOR):
First of all, are you aware of widely reported allegations from US government officials that at Bagram air base and elsewhere in Afghanistan a form of interrogation known as "stress and distress" is used?

SECURITY AGENT (ACTOR):
No, I'm not aware. I've not heard of a term, "stress and distress", no.

LAWYER (ACTOR):
Have you ever heard the expression "torture light"?

SECURITY AGENT (ACTOR):
No, I haven't.

LAWYER (ACTOR):
Are you aware that two people have died during interrogation at Bagram air base and that the military coroner, Elizabeth Rowse, has ruled that the deaths were homicide, finding evidence of blunt force trauma to each of them?

SECURITY AGENT (ACTOR):
No, I wasn't aware of that.

LAWYER (ACTOR):
Is that the sort of thing that might affect your assessment of the reliability of anything to come out of interrogations at Bagram?

SECURITY AGENT (ACTOR):
Again I can only say that we weigh all information carefully, no matter what source it comes from.

LAWYER (ACTOR):
Might it then be factored into an assessment that goes before this commission?

SECURITY AGENT (ACTOR):
I can't confirm that that is in fact the case.

LAWYER (ACTOR):
Does the Security Service have any concern about the way in which American investigators are going about obtaining their information?

SECURITY AGENT (ACTOR):
Not that I'm aware of.

MARSHALL:
Having established these surprising gaps in the MI5 expert's knowledge, he later explained.

LAWYER (ACTOR):
What I'm trying to explore with you, Witness A, is the extent to which you are or may be, in the closed sessions in any of these cases, relying on evidence which has emerged as a result of torture.

MARSHALL:
As the solicitor for two of the detainees told us, defence counsel had to raise that point about torture then, because they're barred from the closed sessions.

NATALIA GARCIA:
SOLICITOR FOR DETAINEES
Neither we nor the appellant ever see or hear the closed evidence. The appellant is completely disenabled from giving any instructions on the closed evidence to anybody because he never sees it.

MARSHALL:
Instead, in the closed sessions, a special advocate - a security vetted lawyer - has to try to represent the detainees' interests. There are difficulties.

TONY JENNINGS QC:
CRIMINAL BAR ASSOCIATION
There are drawbacks with the system. The first drawback is that once the special advocate receives the sensitive information, they can't communicate with the appellant or their lawyers. Secondly that the appellant and their lawyers have no means of challenging the evidence heard in private.

GARCIA:
I think it's appalling. I don't think it should be happening in this country or anywhere else.

MARHSALL:
On the matter of evidence extracted through torture, counsel for the Home Secretary acknowledged it made a "very difficult moral dilemma". But they could be what he called "pragmatic". The judge put the question.

JUDGE (ACTOR):
Can you envisage any circumstances in which the assertions made by someone as a result of being tortured out of him - can you think of any circumstances in which we ought to rely on that?

LAWYER (ACTOR):
Sir, I think I can. I do not put this forward lightly. I am now, of course, talking purely hypothetically. Let's assume the only information which is before the Security Service and the Secretary of State suggests that something extremely significant is going to occur in terms of loss of life.

MARSHALL:
The detainees' lawyer said he wasn't objecting to using information from torture to defuse a ticking bomb, but it should not be allowed as evidence in a court.

LAWYER (ACTOR):
There may be circumstances where it would be irresponsible of the Secretary of State not to take action to protect the people. But it does bring into very sharp focus that question of whether or not it's legitimate for courts to begin to accept torture evidence, because that's what he's saying.

MARSHALL:
Gareth Peirce is the lawyer who helped expose the wrongful convictions of innocents jailed for IRA bombings. She fears the same mistakes are being made today with the new war on terror.

PEIRCE:
We keep seeing that where a shorthand is used of "reliable intelligence" to fight the war on terror, that has caused judgement to be suspended. In fact the lessons we have in this country are that we have continuously locked up the wrong people, accused the wrong people, fabricated evidence and, in the past, relied on the use of brutality. We now have slipped back into all of those temptations.

MARSHALL:
Russia's endless war in Chechnya has left tens of thousands dead and the land devastated. The Russians say Chechnya is their own war on terror. It's an argument they've used in pressing for the extradition from Britain of the Chechen envoy, the actor Ahmed Zakayev. The Zakayev extradition hearing is a very different court, but it too has heard claims of torture.

What went on here at Bow Street last week in an extradition hearing against Mr Zakayev suggests that the special court is not the only place where evidence can be tainted by torture evidence. The allegation is that a major part of the prosecutions' case against Zakayev is founded on the product of torture. The surprise appearance of a defence witness, a former colleague of Zakayev, shocked the prosecution. Through a translator, he told how last year, he was picked up near Grozny by Russian troops. He was handcuffed, a bag placed on his head and bundled into a truck.

ZAKAYEV'S TRANSLATOR (ACTOR):
I heard the sound of barking dogs, like alsatians. Then I was raised off the ground and thrown into a pit. The lid was closed and I was held there for six days.

MARSHALL:
He was only taken out of the pit for daily beatings, interrogation, and torture sessions by his captors, the Russian secret police.

TRANSLATOR (ACTOR):
They tied me to a chair and attached something to my feet, then I had my first electric shock. After that there were more electric shocks and that went on for days.

MARSHALL:
After six days he says he agreed to sign a statement denouncing Zakayev, saying he had ordered the kidnapping of two priests.

TRANSLATOR (ACTOR):
I agreed to cooperate with them. I said I'd sign anything. I couldn't take any more torture. I had no other choice. I couldn't take it. I'm a human being.

MARSHALL:
This all undermined the prosecution. As the judge noted, they'd been relying on that very statement, now startlingly revoked, to damn Zakayev.

JUDGE (ACTOR):
I think there's been a very dramatic turn of events which means we must review the situation. He is one of the witnesses on whom the government originally relied.

MARSHALL:
And there's more. This is the witness in real life on Russian TV. He told the court he was forced to denounce Zakayev before an unwitting film crew. This was shown across Russia. Yet the prosecution had made no mention of that TV appearance. Indeed, they'd told the judge the Russian Government was hiding his identity to protect him. That had been their excuse for concealing his name from the court papers. The judge wasn't amused.

JUDGE (ACTOR):
I need to know why part of this witness statement was redacted. I need to know precisely why that is.

MARSHALL:
The judge was clearly unhappy that, but for the dramatic appearance of the witness, the cover of intelligence and security could have concealed the truth. It's a message with implications far beyond this single case. The war on terror has seen many changes. Even in a land which is no stranger to terrorism and security, some of the measures - physical and legal - have raised concerns. While the Attorney General is in the US, putting the case against their plans for military tribunals, there are fears here about what's emerging in Britain's own courts - open and secret.

LAWYER (ACTOR):
Do you accept that it is your responsibility in evaluating information that's emerged from interrogations to determine whether or not torture may have been used by the state concerned?

SECURITY AGENT (ACTOR):
If we were provided with information by a state where there were human rights concerns, we'd bear that in mind. But it would be our duty, given our role protecting national security, to investigate allegations of activity in the UK. We can't police other states and how they get their information.

MARSHALL:
Others would argue that, even in times of public emergency, where and how evidence is produced can be crucial to the passage of justice.

This transcript was produced from the teletext subtitles that are generated live for Newsnight. It has been checked against the programme as broadcast, however Newsnight can accept no responsibility for any factual inaccuracies. We will be happy to correct serious errors.