CRIMINAL RESPONSIBILITY
11. Paragraph 13 of the Guidance contains the only express reference to criminal law.2
12. The Guidance must be strengthened by expressly acknowledging, and making agents clearly aware,
that where the elements of torture (or other relevant crimes) are established, international criminal
responsibility can arise even in situations where:
a. UK agents are not themselves directly inflicting the pain or suffering in question;
b. UK agents do not know the precise crime that is to be committed, but are aware that one of
a number of crimes will likely be committed and one of those crimes is in fact committed;
or
c. UK agents are not physically present at the time and place of the actual commission of the
crime3
Indeed, such criminal responsibility could arise in relation to other forms of CIDTP in certain
circumstances, for instance, when perpetrated against detainees in situations of armed conflict.
13. The Guidance should make clear that orders from a superior officer or a public authority may not be
invoked as a justification or excuse. 4 The Guidance is potentially misleading in indicating to
personnel that if their actions are consistent with the Guidance they will not risk personal liability.
The Guidance, however, leaves open the possibility for Ministers to instruct personnel to take
actions in the face of a certainty of CIDTP or risks of torture that are short of “knowledge or belief
that torture will take place”. In some circumstances this could clearly place those responsible for
giving and carrying out the instructions at risk of international criminal responsibility.
14. The Government has refused to address, in our correspondence, the lack of reference to criminal
responsibility in the Guidance. While Ministers face the prospect of being held politically
accountable, anyone acting on behalf of the UK - including individual agents - may also be held
individually criminally responsible for complicity or participation in torture. This could be in the UK
under domestic law or elsewhere under universal jurisdiction. The Guidance would be strengthened
by expressly acknowledging that where the elements of torture (or other relevant crimes) are
established, criminal responsibility can arise even in situations where agents are carrying out orders
from a superior officer or a Minister. This can include situations where UK agents are not
themselves directly inflicting the pain or suffering in question or when they are not physically
present at the time and place of the actual commission of the crime. The amendments of November
2011 regrettably demonstrate no further commitment to strengthening the Guidance on this point.
RELIANCE ON ASSURANCES TO ‘MITIGATE’ RISK OF TORTURE OR OTHER ILL-TREATMENT
15. The Guidance relies throughout on the use of assurances in situations where there is a real risk of
torture or other ill-treatment in order “to effectively mitigate that risk to below the threshold of a
serious risk”. It specifies that such assurances can be sought in a number of contexts, including:
a.
b.
c.
d.
when interviewing detainees overseas;
when seeking intelligence from a detainee in the custody of a foreign intelligence service;
when soliciting detention by a foreign liaison service; and
when receiving unsolicited information obtained from a detainee in the custody of a foreign
liaison service.
EUR 45/012/2014
3
31 October 2014