Ahmed & Anor v The Queen  EWCA Crim 184 (25 February 2011)
The applicant claimed that his prosecution for terrorism offences would amount to an abuse of process, on the grounds that British authorities were complicit in his torture committed abroad by Pakistani authorities. The UK Court of Appeal refused to extend the law of abuse of process to situations where the defendant’s torture does not impact on the trial. The prosecution will only be an abuse of process if the product of torture (for example, a statement) is being used in court to make a case against the defendant.
On the particular facts, the applicant could not prove that the British authorities knew of his torture. Even if they had known, the Court held that there was no connection between the torture and the trial, and that neither his deportation from Pakistan, nor the evidence against him at trial, were secured by improper means.
Rangzieb Ahmed and Habib Ahmed were convicted in the Manchester Crown Court of terrorist offences. The jury found that they were Al Qaeda members heavily involved in planning and coordinating terrorist activities. The case against them was based on conversations secretly recorded by Dubai and UK intelligence and incriminating diaries written in invisible ink.
On 20 August 2006, Rangzieb was arrested in Pakistan and detained there for approximately one year. Rangzieb claimed that he was: (i) held incommunicado and without charge until December 2006, (ii) kept handcuffed and shackled in a cell without furniture or daylight, (iii) deprived of sleep and fed poorly, (iv) beaten with sticks, a piece of tyre on a handle and electric wire, and (v) subjected to fingernail pulling on three of the fingers on his left hand. He said that he told British officers of his ill-treatment on the twelfth day of his detention. In September 2007, Pakistan deported Rangzieb to the UK.
In the Court of Appeal, Rangzieb argued that the prosecution was an abuse of process, on the grounds that the British authorities were complicit in his torture.
The Court of Appeal rejected Rangzieb’s submissions.
First, the Court held that only the beatings and fingernail pulling were severe enough to amount to torture. It then confirmed the Crown Court’s findings that they could only have occurred after British officers saw Rangzieb, if they occurred at all. Thus, Rangzieb could not prove that the British authorities knew of his torture.
The Court of Appeal considered that only gross misconduct by the state in manipulating the court’s process and depriving the defendant of the protection of the rule of law would jeopardise the prosecution’s case. Kidnapping a defendant abroad with the purpose of bringing him within the jurisdiction would be sufficiently serious. However, Rangzieb’s return to the UK was lawful, especially since Rangzieb was a British national. Similarly, the prosecution may not rely at trial on the fruits of torture. Torture is jus cogens – one of the most serious violations of international law. Article 15 of the UN Convention against Torture (CAT) prohibits reliance in court on a statement that is the product of torture (wherever committed). Although items (i) to (iii) above could amount to the lesser offence of cruel, inhuman and degrading treatment or punishment, the Court felt this was insufficiently serious.
The following question thus emerged: ‘If intelligence is regularly shared with a State where there exists the possibility that torture may be employed, when should a prosecution against a man who has been in the hands of that State be stayed?’ The House of Lords had faced a similar question in A v Home Secretary  2 AC 68. There, the Law Lords drew a distinction between using the product of torture to make a case in court against a defendant, and its use by non-judicial authorities in the discharge of their duties to protect public safety. The former would be abuse of process, but the authorities cannot shut their eyes to information that could be used to protect the public. As the jury convicted Rangzieb on evidence that was collected before his imprisonment in Pakistan, torture in Pakistan could not impact on the trial. Therefore, even if the British had been complicit in Pakistani torture, there was no connection between the torture and the trial.
Relevance to the Victorian Charter
The Victorian Charter prohibits torture in s 10(a). Similar provisions exist in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention against Torture. Under s 38 of the Charter, it is unlawful for a public authority to act incompatibly with s 10(a) or to fail to give proper consideration to it. However, relief under the Charter may only be sought on the back of a non-Charter cause of action: ss 38-9; Sabet v Medical Practitioners Board of Victoria (2008) 20 VR 414, . One such cause of action could arise under recently inserted Division 274 of the Commonwealth Criminal Code, which makes torture a federal offence.
More specifically, the Evidence Act 2008 (Vic) makes a defendant’s confession inadmissible if it was influenced by oppressive conduct such as torture (s 84). Further, the court has a discretion to exclude improperly or illegally obtained evidence, having regard to, among other things, whether the impropriety was inconsistent with a person’s right under the ICCPR (s 138). Although the torture principles in Ahmed are based on the inherent jurisdiction of the court to prevent abuse of its process, rather than admissibility of evidence rules, they can achieve a similar result.
The relevance of Ahmed lies in (1) the Court’s restriction of the law of abuse of process to situations where the defendant’s torture impacts on the trial, and (2) its confirmation that only similarly serious misconduct by the state, such as through unlawfully bringing the defendant into the jurisdiction, would make the prosecution an abuse of process.
The decision is at www.bailii.org/ew/cases/EWCA/Crim/2011/184.html
Sylvester Urban, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group