Joint Committee on Human Rights - Twenty-Eighth Report

Joint Committee on Human Rights Twenty-Eighth Report

1 Discrepancies in evidence given to the Committee

1. In June 2004 our predecessor Committee wrote to Adam Ingram MP, then Minister of State for the Armed Forces, about claims made in February 2004 in a report by the International Committee of the Red Cross that, in certain cases, methods of physical and psychological coercion had been used by British interrogators to obtain confessions and extract information.[1] One of the issues we raised concerned the possible use of five 'conditioning techniques' - wall standing, hooding, subjection to noise, sleep deprivation and deprivation of food and drink - in interrogation. The use of these techniques was prohibited by the Government in 1972, following allegations about their use in Northern Ireland. In the case of Ireland v UK in 1978, the European Court on Human Rights found that the combined use of the five techniques amounted to a practice of inhuman and degrading treatment. During court proceedings, in 1977, Sir Samuel Silkin, the then Attorney General, gave an "unqualified undertaking" that "the five techniques will not in any circumstances be reintroduced as an aid to interrogation".[2]

2. Mr Ingram replied to the Committee in the following terms:

I can confirm that the directive on interrogation referred to in Para 135 of the Judgment in Ireland v UK prohibiting the use of the five techniques found to constitute degrading treatment (hooding, wall standing, sleep deprivation, food deprivation, and white noise) remains in force. The training given to those Service personnel in appointments which could require them to conduct interrogation of captured enemy personnel takes full account of this directive, of the Geneva Convention and of the Laws of Armed Conflict.[3]

3. In May 2006 we published a Report on the UK's compliance with the UN Convention Against Torture (UNCAT).[4] Amongst the areas covered in that Report were the applicability of UNCAT to the armed forces and the jurisdiction of UK courts and courts martial over military personnel for actions which may be in breach of prohibitions against torture and inhuman or degrading treatment under UNCAT, the European Convention on Human Rights (ECHR), and domestic and international law.[5] UNCAT prohibits torture and inhuman and degrading treatment, in similar terms to the ECHR.[6]

4. In oral evidence, on 27 March 2006, we asked Lieutenant General R. V. Brims CBE DSO, Commander Field Army, about whether he was satisfied troops were fully aware of the prohibition on the use of the five conditioning techniques. Lieutenant General Brims said:

On hooding we have given very clear direction and hooding itself will not take place. It is permissible to blindfold in some other way in certain circumstances but we care not to do that at the moment … I think if you went and asked most troops, "What are the five things that have been banned?", they would look at you and be unable to communicate to you. If you wrote down these five things, "What is your view on them?", they would say, "You should not do them", if you follow the answer.[7]

In our Report, we drew attention to Mr Ingram's letter and Lieutenant General Brims's comments without drawing any conclusions of our own.[8]

Evidence of the use of conditioning techniques in Iraq

5. In 2007, evidence came to light which appeared to contradict the clear assurances we had received from Lieutenant General Brims that conditioning techniques such as hooding and the use of stress positions were not used by the British army. During the court martial of a number of soldiers from 1 Queen's Lancashire Regiment alleged to have been responsible for the death of Baha Mousa, an Iraqi civilian, in September 2003, it emerged that such techniques had been used to maintain the 'shock of capture' in advance of tactical questioning.[9] The court heard evidence that the use of the conditioning techniques had been authorised by Brigade headquarters and its legal officer. There was also evidence about advice given by the Attorney General on the applicability of the ECHR in detention facilities in Iraq, which appeared to some to suggest that he had advised that the ECHR did not apply.[10] At the end of the proceedings, Judge Advocate McKinnon spoke of "a serious failing in the chain of command all the way up to Brigade and beyond".[11]

6. At the conclusion of the court martial - at which only one person, Corporal Payne, was convicted, of inhumane treatment - the head of the army, General Sir Richard Dannatt, accepted that Baha Mousa and others "were subjected to a conditioning process that was unlawful". He went on to state that the duty of British military personnel to behave in accordance with the law "was forgotten or overlooked in this case".[12]

7. We wrote to the Secretary of State for Defence on 22 May 2007 to raise a number of issues arising from the Payne court martial, including:

the apparent discrepancy between the evidence presented to the Committee that the use of the conditioning techniques had been prohibited and the evidence presented to the court martial, and accepted by the Crown, that the use of hooding and stress positioning was part of the standard operating practice of 1 Queen's Lancashire Regiment in 2003 and had been sanctioned by Brigade headquarters;
whether any of the conditioning techniques had ever been sanctioned or authorised for use in Iraq, or in any other circumstances, by the Ministry of Defence or by any of the armed forces, to prolong or maintain 'shock of capture' prior to interrogation; and
whether the Government intends to take any further steps to revise the training, guidance and procedures for the treatment of detainees and internees.[13]

8. The Secretary of State, in his reply of 15 June 2007, said he was unable to provide the information we had "rightly" sought because the legal process concerning Corporal Payne was not concluded and a review of the lessons to be learned from the death of Baha Mousa had been commissioned by the former Chief of General Staff, General Sir Mike Jackson, and was due to report "shortly".

9. The report of the review referred to by the Secretary of State, which was carried out by Brigadier Robert Aitken, was published on 25 January 2008. At the same time, the Secretary of State announced that the Army Prosecuting Authority had concluded that there were no further criminal lines of inquiry in relation to the Baha Mousa case.[14] The Aitken report concluded that:

The great majority of officers and soldiers who have served in Iraq have done so to the highest standards that the Army or the Nation might expect of them, under extraordinarily testing conditions. There is no evidence of fundamental flaws in the Army's approach to preparing for or conducting operations: we remain the envy of our allies for the professionalism of our conduct. [15]

Aitken went on to note that "the doctrine, training and education required to deal specifically with detained civilians has been comprehensively reviewed", that "measures have been put in place to ensure that all those involved in prisoner handling or interrogation are now significantly clearer about the correct procedures" and "the procedures of the Military Criminal Justice System are fit for purpose".[16]

10. Aitken did not address the question of why soldiers in 1 Queen's Lancashire Regiment came to think that the proscribed conditioning techniques were, in fact, lawful, explaining that this was an issue to be considered by a subsequent, broader enquiry.[17] He went on to set out a number of contextual factors, however. He concluded it was likely that the prohibition on the use of the conditioning techniques had been restricted only to Northern Ireland operations and did not extend outside of the intelligence community.[18] By 2003, the doctrine in use at the Defence Intelligence and Security Centre only required prisoners to be treated in line with international law and did not make specific mention of the five techniques. "Determining how and when specific direction in 1972 came to be lost in 2003 would have to be a matter for separate investigation" Aitken concluded.[19]

11. Aitken also drew attention to deficiencies in training and guidance for troops. Training packages "described in detail the manner in which prisoners of war were to be treated, but made scant mention of the treatment of civilian detainees".[20] The rules and practices relating to interrogation and tactical questioning (IT&Q) were "not as clearly articulated" in 2003 as they are now.[21] Current policy on IT&Q specifically proscribes the use of the five conditioning techniques, but this was not spelled out in guidance on the handling of internees and detainees which has more general application. Aitken concluded that it was "understandable" that the contents of the more specific IT&Q policy were "not widely known throughout the Army".[22] Aitken also drew attention to the training of some members of the army in proscribed IT&Q techniques, in order to prepare them for the treatment they may receive from an enemy. This practice was discontinued in 2005.[23]

12. The Secretary of State announced on 14 May 2008 that a further inquiry into the circumstances surrounding the death of Baha Mousa would be held under the terms of the Inquiry Act 2005.[24] Terms of reference have yet to be announced.

Conclusion

13. The evidence presented to the Payne court martial, and accepted by the Crown, and the findings of the Aitken report would appear to show that:

conditioning techniques such as hooding and the use of stress positioning were used by some British troops in Iraq, despite such techniques having been prohibited in 1972;

the use of hooding and stress positioning by 1 Queen's Lancashire Regiment in 2003 was based on legal advice received from Brigade headquarters;

the prohibition on the use of conditioning techniques may have been interpreted narrowly, as only applying to interrogation personnel and to operations in Northern Ireland;

at least until the Baha Mousa case came to light, the prohibition on the use of conditioning techniques was not as clearly articulated to troops in Iraq as it might, and indeed should, have been;

even as late as January 2008, when the Aitken report was published, the prohibition on the use of conditioning techniques was not clearly articulated to service personnel other than those responsible for interrogation; and

until 2005, interrogation personnel were trained in proscribed techniques, if only to demonstrate the techniques to which they might be subject if captured.

14. These conclusions call into question the evidence we received from Lieutenant General Brims and which our predecessor Committee received from the Minister for the Armed Forces. Lieutenant General Brims's assertion that ordinary troops would recognise that techniques such as hooding were prohibited is not supported by Brigadier Aitken's findings or the events surrounding the death of Baha Mousa. Nor does Mr Ingram's claim that the training of interrogation personnel took full account of the prohibition on the use of the five conditioning techniques seem consistent with the facts which have now come to light.

15. The evidence we received from Lieutenant General Brims and Mr Ingram formed the basis for the section of our Report on the UN Convention Against Torture dealing with interrogation techniques. It would appear that this evidence was incorrect and that, as a result, we were unable to give a full account to Parliament of the human rights issues relating to the use of such techniques.

16. We have yet to receive an explanation from the Ministry of Defence for the discrepancies between the evidence given to the Joint Committee in 2004 and 2006 on the use of prohibited conditioning techniques and the facts which have emerged from the Payne court martial and the Aitken report. The issues relating to the death of Baha Mousa are now the subject of a public inquiry. We recommend that, in response to this Report, the Secretary of State for Defence should confirm we will receive a detailed explanation of the discrepancies between the evidence to the Committee by Mr Ingram in 2004 and Lieutenant General Brims in 2006 and the facts which have subsequently emerged concerning the death of Baha Mousa, as soon as possible after the conclusion of the public inquiry.

1 Nineteenth Report, Session 2004-05, The Work of the Committee in the 2001-2005 Parliament, HL Paper 112, HC 552, (hereafter 19th Report 2004-05), Appendix 3. Back

2 HC Deb, 2 Mar 1972, from c743; and Ireland v United Kingdom, App. No. 5310/71, [1978] 2 EHRR 25, paragraph 102. Back

3 19th Report 2004-05, Appendix 3. Back

4 Nineteenth Report, Session 2005-06, The UN Convention Against Torture (UNCAT), HL Paper 185, HC 701 (hereafter UNCAT Report). Back

5 Chapter 4. Back

6 See Articles 1, 2 and 16. Back

7 Qq 238-39. Back

8 UNCAT Report, paragraphs 83-85. Back

9 Transcript of Court Martial proceedings p22 (Major Anthony Royce). Back

10 Nineteenth Report, Session 2006-07, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HL Paper 157, HC 790, Qq185-240. Back

11 Daily Telegraph, "Britain's first war criminal jailed for one year", 1 May 2007, http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/04/30/npayne130.xml Back

12 MoD press statement, 30 April 2007. Back