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United Kingdom: Commission Warns Government over Legality of Its Torture Policy

(Oct. 6, 2010) In July 2010 the United Kingdom’s coalition government released guidance that addresses the detention and interviewing of overseas detainees and gives instructions on how intelligence relating to detainees may be received. One purported aim of the release of this guidance was to signal a break from the previous government, whose actions overseas relating to detainees in Iraq have come under fire for amounting to torture and which had repeatedly refused to publish similar guidance.

The guidance distinguishes between two types of acts, torture and cruel, inhuman, or degrading treatment, noting the distinction in British law. It specifically sets out the definition of torture, which is contained in UK law, noting it occurs where a public official intentionally inflicts “severe mental or physical pain or suffering in the performance or purported performance of his duties.” It also provides a non-exhaustive list of examples of cruel, inhuman, or degrading treatment or punishment, which is not defined in UK law, to include use of stress positions, sleep deprivation, and hooding, although certain exceptions to hooding are recognized if it is required for security purposes during arrest and transportation. (HM Government, Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (July 2010), http://download.cabin

The Equality and Human Rights Commission, the U.K’s human rights watchdog, warned the government that if the guidance is not changed, it will challenge the document in the courts. The government has responded that it believes the guidance conforms with international and domestic laws and that it does not intend to amend it. (Ian Cobain, Torture Guidance Does Not Breach Law, Says Coalition (Sept. 27, 2010), THE GUARDIAN (London),

The guidance is already facing a challenge in the courts by 34 civilians who were detained in Iraq and allegedly tortured and hooded. As noted above, the guidance does specify that hooding should not be used; however, it provides that there are exceptional situations in which its use is permitted. In conclusion, the publication of this document can be seen as a step towards transparency, but it seems that, unless amended, there will be legal challenges to the document. (Id.)