1. Claimant: All Claimants 2, Name of Witness: S. Malik 3. No of Statement: 4 4. Exhibits: 4 5, Date: 12 July 2070 IN THE HIGH COURT OF JUSTICE Claim No: HQ08X01180 HQ08x01416 QUEEN’S BENCH DIVISION HQ08x03220 HQ08x01686 BETWEEN (1) BISHER AL RAWI (2) JAMIL EL BANNA (3) RICHARD BELMAR (4) OMAR DEGHAYES. (5) BINYAM MOHAMMED (6) MARTIN MUBANGA Claimants -and - (1) THE SECURITY SERVICE (2) THE SECRET INTELLIGENCE SERVICE (3) THE ATTORNEY GENERAL (4) THE FOREIGN AND COMMONWEALTH OFFICE (8) THE HOME OFFICE Defendants Exhibit ‘Sm22’ This is the exhibit marked ‘SM22' referred to in my fourth witness statement om Grail Dated ...2: [orlie66 fie uf SEOIAIS 9002 Ain 250-0) or3 BSDEDST Taq] i 10 Kaljod Kouabiy| se pepepal sa 4| ‘sudgeedo Uontiejeq pue| 8002 judy] 700-0] ienuew jeinpesoud jeseueb s.Sig 30 Ze vaydeyo| Zz paipepar Say] Souepind BulLieuco oBessou Sig) 100-0) SioquinU/Sbeq fon IedSHT OF SUONOTEG jondussea|y a eaueley OL0¢ ANN 12 Gaiva waauo SUastis SOMLSNAf YW OL INVASYNd aunso75ei4 Nado sis)67 LL QAIDR DETAINEES 1. Thank you for making such a good and determined start on interviewing Al Qaida detainees; we can se: there are one or two legal pointe worth repeating and/or arifying, sone with particular reference tome sce nove general QB hes S5ked that yoo shara these with 4. With regard to the status of the prisoners, Geneva conventions and protocols, al! prisoners, however they are described, are entitied to the same level of protection. You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given that they are not within our custody or control, the law does not require you to intervene to prevent this. that said, HMG's stated commitment to human rights makes it important that Pq under the various68 the Awericans understand hat we cannot be party to such ill ereatment nor can we be seen to condone it. In no case should they be coerced during or in conjunction with an SIS intervi Tf circumstances allow, you should consider drawing this attention of a suitably senior US official locally ww of them to the 5 jortant that you de not engage in any activity yourself that involves inhumane or degrading treatment of prisoners. As representative of a UK public authority, you ace obliged to act in accordance with the Human Rights Act 2000 which prohibits torture, or inhumane or degrading treatment. Also, as a Crown Servant, you ave ound by Section 31 of the C Justice Act 1948, which makes acts carried out overseas in the course of your official duties subject to UK criminal law. In other words, your actions incu: criminal liability in the same wéy as if you were carrying out those acte in the UK iminal 5. If you require further guidance ®UMMMNMP on thio or related es, please contact either, P269 Chapter 32: Detainees and Detention Operations Responsible section 1.1 SIS operations involving detainees fall into three broad categories: a __ operations to detain terrorist suspects in which SIS either directly participates or to which SIS's CX or opint contributes; b. the Interviewing by SIS officers of detainees to obtain intelligence; and from detainees. ng of CX or opint obtained by liaison service All categories of operation carry particular sensitivities. Staff should const LA section early in the planning stage of al! operations relating to detainees. DETENTION OPERATIONS For detention operations (para 1.1a) the fatlowing particular sensitivities a. the geographical destination of the target. Where will he or she be held? Under whose jurisdiction? is it clear that detention, rather than killing, is the objective of the operation? », what treatment regime for the detainee(s) can be expected? © what Is the legal basis for the detention? a. what is the role of any liaison partner who might be involved? 2.2 _ Staff should not give commitments to liaison partners for such an operation before discussion with HO, 2,3. It will not always be possible to identify the operations described at para itz, In some cases SIS's intelligence goes into a melting pot Sarr. ae perhaps over weeks, The operational outcome from a single piece of intelligence will be hard to predict or identify. Those responsible for making the decisions may themselves be unaware of the use to which a particular item will be put. When they are aware they will not necessarily know that SIS was the source of that item. Staff should consult HO before initiating any new collgboration of this kind with a liaison service or with $i 2.4 In other detention operations, SIS provide Biiliand very specific items of intelligence, and sections will either know or have reasonable suspicion that SIS’s P370 intelligence will be used for the purpose of detention, In these cases, staff must consult at the outset before sharing the intelligence. INTERVIEWING DETAINEES 3.1 The interviewing of detainees by SIS officers (para 1.1b) requires us to be alert to additional factors: 2. the nationality of the detainee, SIS would normally expect UK citizens to be interviewed by Security Service officers. UK citizenship will also raise consular issues; the treatment regime witnessed by, or described to, STS interviewers. 3.2 Jn compliance with HMG's obligations under international treaties, all interviews must be free from pressure or coercion and must not include inhumane or degrading treatment. The following techniques are forbidclen a. Hooding at any time; b. — Obscuring vision during interview (although the blindfolding or obscuring of vision during arrest or transit on security grounds is regarded as acceptable); Physical punishment of any sort (beatings, etc); d. Use of stress positions; Intentional sleep deprivation; fF. Withdrawal of food, water or medical help; 9. Degrading treatment (sexual embarrassment, religious taunting etc); h, Use of ‘white noise’; i. Torture methods such as thumb screws ete. 3.3. If an officer witnesses any of the above techniques being used in interview of any other form of mistreatment in interview, the officer should request the interview to stop, make his concerns known to the detaining authority, withdraw from the interview and report the Incident immediately to HO. 3.4 Ifa detainee complains of mistreatment during an interview, the officer should draw the complaint to the attention of the detaining authority, unless the officer believes that to do so would provoke further mistreatment against the detainee by the detaining authority, P4a RECORD | 4.1. Any member of staff who conducts or witnesses the interview of a detainee must complete a Detainee Contact Report (DCR), which is available in the Office Info Cabinet. A DCR must be completed for each and every interview undertaken, 4.2 The blank OCR is unclassified and can be shown to liaisons or OGDs at the officer's or the Station’s discretion. Once a DCR is completed, it should be rarkes PAVE oF higher. 4.3. AILDCRs will have alii autofile reference. The relevant desks or operational teams may also mark OCRs to their own files. 4.4 The action addressee of the DCR should be the CREMEEEREHI It should be copied to Q}and BM Officers may add any other relevant desk officers to the distribution 4,5 Officers must complete and file the DCR within one week of the interview. But they must report any improper conduct immediately. Officers may also fill in the OCR by hand and then scan it into the system, LIAISON REPORTING 5.1 The British Government, including SIS, is vehemently opposed to torture as a matter of fundamental principle and never uses torture for any purpose, Including to obtain information, Nor would we instigate others to commit torture for that or any other purpose. In practical terms this means that, in circumstances where you are aware thal liaison reporting has been obtained from detainees and you know or reasonably suspect the reporting has been obtained from torture, you must report this at the earliest possible opportunity to (il copied to P5AGENCY POLICY ON LIAISON WITH OVERSEAS SECURITY AND INTELLIGENCE SERVICES IN RELATION TO DETAINEES WHO MAY BE SUBJECT TO MISTREATMENT Over 1, ‘The Security and Intelligence Agencies (“the Agencies") do not participate in, solicit, encourage or condone the use of torture or inhuman or degrading treatment (referred to in this paper genczally as “mistreatment”), ‘They will therefore not camry out any action which it is known will result in torture or inhuman or degrading tweatment, At the same time, the Agencies need to work with a range of overseas scoutity and intelligence services (“liaison services") for the proper discharge of their functions. ‘This policy sets out the legal issues on dealing with liaison services where the Agencies’ actions might result ia an individaal’s mistreatment in detention at the hands ofa liaison service, It suggests practical ways to eliminate or minimise, so far as possible, the risk of such mistreatment and, at the same time, unlawful actions by the Agencies and their staff, 2. The poliey does not cover the circumstances in which the Agei direetiy involved in the questioning of an indivi ate guidance. es are I in the custody of a liais service, for which there is s Key Points * The Agencies need to develop and maintain close working links with « wide and growing range of liaison services for the proper discharge of their funetions. This involves passing, seeking and receiving information, * The Agencies do not participate in, solicit, encourage or condone the use of torture or inhuman or degrading treatment. The Agencies will not carry out any action which it is known will result in torture or inhumen or degrading treatment + Where the Agencies foresee a real possibility that their actions will result in an individual’s mistreatment, they will consider applying caveats or secking prior assurances before acting in order to eliminate or minimise the risk of mistreatment * Whore, notwithstanding any caveats or prior assurances, there is still considered to be a real possibility of mistreatment and therefore there is considered fo be a risk that the Agencies’ actions could be judged to be unlawful, the actions may not be taken without authority at a senior level. In some cases, Ministers may need to be consulted EEay Context 72 PG3. Under both the Security Ser vice Act 1989 and the Intelligence Services Act 1994 (‘‘the Security and Intelligence Acts”), it is the duty of the Director General and the Chief of SIS respectively to ensure that there are arrangements for securing that no information is obtained or disclosed by the Agencies except so far as is necessary for the proper discharge of their separate functions, 4, ‘The Agencies’ funstions are set out in section 1 of both of the Security and Intelligence Acts, ‘The fonctions include the protection of national security, in particular against threats from terrorism 5. ‘The most substantial terrorist threat currenily faced by the UK comes from Al Qaida and from groups affiliated to or inspired by it This threat is uniquely ‘transnational and requires an international response. Its emergence particulasly since September 2001 has led to increased co-operation between governments, including on ecurityfintelligence channels. ‘The need for enhenced international cooperation to Combat the threat ftom Al Qaida and its affiliates was recogmised and has been emphasised since September 2001 in, for example, UN Security Council Resolution 1378. 6, __ In these circumstances, the Agencies need, for the proper discharge of thei s, in particular the protection of national scourity against threats from terrorism, to develop and maintain close working links with a wide and growing range of lisison servic cking and receiving information finctioy his involves passing, s 7. However, the observance of human rights standards by liaison services and states varies. ‘The UK is required, in particular under the United Nations Convention against ‘Torture and eastomary international law as reflected in the draft articles of the International Law Cormission (“the ILC”) on State Responsibility, to prevent acts of torture within ifs jurisdiction and to cooperate to bring to an end acts of torture amounting to serious breaches of the [LC by other states. The Agencies are committed 10 ensuring so far as possible the observance of human rights by liaison services and work with liaison services to achieve this. In addition, passing information (o and seeking and receiving information from liaison services, where this might cause or result in an individual’s mistreatment, can in certain circumstances contravene UK law. For all these reasons, it is clesrly vital that the Agencies” relationships with liaison services are conducted in a Way that eliminates or minimises the risk of mistreatment and therefore that an officer of either Agency could be judged to have acted unlawfully. Policy 8. The Securily and Intelligence Agencies do not participate in, solicit, encourage or condone the use of torture or inhuman or degrading treatment. For reasons both ethical and legal, their policy is not to carry out any action which they know would result in torture or inhuman or degrading treatment. Where there is considered to be a risk that-the Agencies’ actions will be unlawful, the actions may 73 PTnot be taken without authority at a senior level. In some cases, Ministers may need fo be consulted. Law 9. The Security and Intelligence Acts require that, before passing information to, or sceking or receiving information from a liaison service, the offi case must be satisfied that his actions are necessary for the proper discharge of the particular Agencies’ functions. All of the relevant circumstances need 10 be considered. These will include the potential or anticipated benefits fiom passin seeking or receiving the particular information, as well as arly potential ne; consequences. if the possibility exists that information will he or has been obtained throngh the mistreatment of detsinees, the negative consequences er dealing with the may include any potential adverse effects on national security if the fact of the Agency secking or accepting information in those circumstances were to be publicly revealed. Fo. instance, it is possible that in some circumstances such a revelation vould result in further radicalisation, leading to an increase in the threat from terrorism, or could result in damage to the roputation of the Agencies, leading to a reduction in the Agencies’ ability to discharge their functions effectively, Where there is the potential ative consequences to outweigh the benefits, advice should be taken as for such appropriate, 0. Even if the proposed actions satisfy the (est under the Secu ty and Intelligence Acts are @ number of ways in which they might 6G) be wnlawfal under UK criminal law; (i) be unlawful under UK civil law; or Gii) put the UK in breach of international law. (i) Criminal law 11. Officers of the Agencies will commit a criminal offence where their actions aid, abet or incite the commission of a criminal offence under UK law by a liaison service overseas. The offence committed could be: (@) torture; (b) a breach of the Geneva Conventions Act 1957 (torture or inhuman treatment of & detainee entitled to the protection of the scheduled conventions or the first protocol) and of the Intemational Criminal Court Act 2001; or misfeasance in public office. P812, Section 134 of the Criminal Justice Act 1988 reads as follows: @ — Torture “a public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the UK or elsewhere he inlentionally inflicts sovere pain or suffering on another in the performance or purported performance of his official duties.” J is immaterial whether the pain or suffering is physical or mental and whether it ig caused by an act or an omission: subsection (3) 13, It is an offfence for an officer to incite the offence of toxture committed by a foreign liaison service, An officer will be guilty of incitement where he intends to ncite torture by his actions or, possibly, where he knows or believes that torture will result from his actions. For this pumpose, ely closing one's eyes to the same as knowing those deliber sequences of one's actions is deemed to be consequences. 14, It is an offence for an officer to aid or abet the offence of torture committed bya fo vice. An officer will be liable for aiding and abetting torture if he intends to and wilfully does encourage it and torture is caused by his actions, ‘The offence of aiding and abetting torture might also be committed where the Agencies engage in a joint operation with a liaison service or provide actual assistance to that liaison sevice, e.g. by provid: In those circumstances, an officer who in a joint operation or pr appropriate caveat or secured the necessary assurances (see further paragraphs 35 (0 37 below), may aid or abet torture if he knows or believes that the liaison service will commit torture and his conduct is capable of assisting that torture and torture does in fact result, gn liaison se engeg Vides assistance, without having attached an 15. In the context of these offences, the human rights record of the state and liaison service in question will of course be a relevant factor, although there is a difference between what is known end what is tumour and unproven reporting, (b) Breach of the Geneva Conventions Act 1957 Court Act 2001 the international Criminal 16, Under section 1 of the Geneva Conventions Act 1957: “Any person, whatever his nationality, who, whether in or outside the United Kingdom, conunits, or aids, abets or procures the commission by any other person of, a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence”, 17. ‘The scheduled conventions are the 1949 Geneva Conventions I to IV and the first protocol refers to tho 1 977 Geneva Protocol 1. ‘These apply to prisoners of war, P9civilians in detention and certain other categories of person. For the purposes of this offence, the status of the detainee will therefore be critical. However, the offence will only apply in situations arising out of armed conflict Any torture or inhuman (but not degrading) trestmemt of a detainee entitled to ‘he protection of the scheduled conventions or the first protocol will amount to a “grave breach” under the Act and therefore a criminal offence. An officer may aid, abet or incite the offence in the same way as deseribed in paragraphs 13 and 14 above 19. It will also be an offence under the Intemational Criminal Court Act 2001 to aid, abet or incite a person to commit a “war crime”. War crimes inchide grave breaches of the Geneva Conventions (6) Misfeasance in public office 20. One other offence could also be committed. The common law offence of misfeasance in public office can be committed where a public official wilfully neglects to perform a duty which he is bound io perform by common law or statute. It is conceivable that this offence could be used 10 prosecute public officials who have y. However, the offence is unlikely ta cover situations aot caught by the above offences and so docs not need {0 be considered further for the purposes of this paper sanctioned torture in.som @ Civil aw fa) Section 6 of the roman Rights Act 21, Under section 6 of the Human Rights Act 1998 it is unlawful for a publie authority to commit torture, or to inftiot inhuman and degiading treatment, as this would be incompatible with a convention right: Article 3 of the European Convention on Human Rights (“the ECHR”), the prohibition of torture. However, for the Act to apply in relation to detainees held overseas, the UK would need to be in “effective control” of the area in which the deteinee was located, as the p ction of the Act is terzitorial, ‘The Act is therefore unlikely to apply in the situations covered by this policy. (©) Trespass against the person and false imprisonment 22. — Mistreatmnent and torture could also amount to the tort of trespass against the person or possibly false imprisonment, In theory, a victim of such mistreatment could bring an action for damages against either the Agency or their officers, where an officer had instigeted « foreign liaison service to carry out an act which caused the torture or mistreatment of an individual and those consequences were reasonably foreseeable. A civil action could also be brought in similar circumstances on the basis of misfeasance in public office, The remedy for such actions would be damages. (iii) Intemational law 76 P1023, The UK is a signatory to the United Nations Convention against Torture CUNCAT”) (as Well as related provisions on torture in the ECHR and the Intemational Covenant on Civil and Political Rights (*ICCPR")). Article 2 of UNCAT prohibits tortie. Article | defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining fiom hin or a third person information or a confession, punishing him for an act he or a thitd person has committed or is suspected of having committed, or intimidating or coescing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at {he instigation of or with the consent of a public offieial or other person acting in an official capacity 24, UNCAT requires States to take offi within its jurisdic ective measures to prevent acts of torture jon, UNCAT"s requirements are met by the UK through the creation of the criminal offence of torture (as above). However, where the actions of members of the Agencies amount to this affence, those actions could also lead to a finding that the UK was in breach of UNCAT. 25. Roth the ECHR and the ICCPR also con inhuman and deg subject to the UK’ this policy. ‘in prohibitions against torture and ent, However, as these only apply where a detainee is isdiction, they are unfikely (o apply in the situations covered by ing treatn 26. The UK. might be Hable under intemational law where the actions of members of the agencies provide aid or essistance to another State with a view to facilitating the commission of an internationally wrongful act (see Drafi Article 16 of the Articles on Stale Responsibility adopted by the Intemational Law Commission). However, this would only apply where the members of the agencies act, knowing of the proposed intemationally wrongfal act and with # view to facilitating it, and their aid oF assistance actually facilitates the wrongful act. While the legal position is not clear, where information is yeceived under an ongoing liaison arrangement from a country known to use torture systematically, there could also be a risk that the UK. would have failed to comply with its duty under customary intemational law (es reflected in draft article 41 of the ILC's draft articles on State responsibility) to cooperate to bring an end to the use of torture in such a State. However, the risk of a breach would be significantly reduced where positive steps are taken to try to prevent torne by obtaining credible essurances, There would be no breach of this duty where, for example, sporadic use of torture might be suspected Roles and responsibilities 27. All relevant agency staff should ensure that they are familiar with the guidance in this paper, together with any related advice circulated by the Agency. Nominated staff will be responsible for deciding whether to proceed in cases where 7 Pitthere is considered fo be a risk of mistreatment and they will also be required to form judgments about the adequacy of cavests and assurances, In cases of particular difficulty or sensitivity, or where there is considered to be a risk of mistreatment notwithstanding any caveats or assurances, the decision should be refered to nominated senior staff 28, ‘The Legal Advisers in both Agencies will be able to adv that arise in particular cases. These wil] include whether what is known about a particular state or liaison service, or what is known in a y # e286, means that there is foresight of a real possibility of mistreatment. The LAs will also be able to ise whether anticipated consequences amount o torture or mistreatment. (For instance mistreatment can include treatment other than physical inuy. It ean include mental cruelty and could potentially stise from indefinite and unlawful detention.) Advice can also be given on the status of a detainee and whether he is entitled to the protection of the Geneva Conventions, They will also be able 10 advise on the adequacy of any caveats or assurances that have been received ‘on any legal issues tion Procedure 29. Different considerations will apply depending on whether the Agencies: (1) pass information to a fisison service, which may result in an individual’s detention or be used in the questioning of an individual in detention, or when secking information from a liaison service, which may be obtained from an individual in detention; or receive information from a liaison service, which may have been obtained from an individual in detention, () Passing or seeking information 30, The officer must consider whether his actions might result in the torture or mistreatment of an individual, He needs to identify which of the following is the case: (@) he knows that his actions will not result in torture or mistreatment or he does not foresee a real possibility that such consequences will result; () while he does not now, he foresees a real possibility thet the consequences of his actions will include torture or mistrentment; or (©) be knows what the consequences of his actions will be and those consequences include torture or mistreatment (a) He knows that his actions will not result in torture or mistreatment or he does not foresee a reall possibility that such consequences will result 31. In accordance with mation to a snderd practice, before passing any i 78 P12liaison service, an officer should always attach the standard liaison caveat to the information: “This information has been communicated in confidence to the recipient government and shall not be veleased without the agreoment of the Buitish government” 32. Where the officer does not foresee a real possibility that the consequences of his actions will include torture or mistreatment, or where he knows thet such consequences will not result from his retions, no further caveats are necessary. To proceed will be lew 33. ‘The critical question is what steps should the officer take to inform himsel before deciding whether he foresees a real possibility. Whilst there is no leg: obligation on staff (o seek out potentially relevant information, the officer should ensure that he is reasonably well informed of the practices of particule slates and @) While he does not know, he foresees a real possibility that the consequences will include torture or mistreatment 34. Ifthe officer fosesees a real possibility that his a mistreatment, he must_sefer the matter to his_senior li proceeding further jons will result in torture or ment may conelnde that there is not a reat possibility that mistreatment will occur, in which case the officer may proceed, But if line management share the assessment of the officer, they should consider attaching a farther caveat to the information or request, in addition to the standard liaison cavest set out above. A further caveat could be to the effect that, as appropriate: (the information should not be used as the basis for executive action ) the information should not be used as the basis for questioning any individual; Gis) if the information is to he used as the basis for questioning any individual, such questioning should conform with intemational legal standards; (iv) the information sought should not be obtained from any individual in detention; or (¥) if the information may be obtained from any individual in detention, the questioning of him should conform with intemational legal standards. t ly.of value if the officer believes that it will be ihe risk that en individual might be mistreated as a my 79 P13resuit of his actions, 37. If it is not thought that caveats slone will suffice, management consider secking specific assurances from the liaison service in question to prevent any mistreatment occurring, Any assurances must be reliable and credible: an assuran | will not be observed is of no value. However, once such apparently reliable assurances have been received, the intended action may he authorised and may proceed. IL will be law should 38, If itis not considered possible to obtain reliable assurances, or if there is any doubt about the reliability of assurances received, the matter should be referred to senior management before proceeding fimther. Senior management, having taken advice from the LAs as they judge necessary in th circumstances, will de whether to authorise the proposed action. ‘They will balance the risk of mistreatment and the risk that the officer's actions could be judged to be unlawful inst the need for the proposed action. All of the relevant circumsiaaces will be taken into account, These will include the operational imperative for the proposed action, such as if the action involves passing or obtainin, e, the evel of mistreatment anticipated and how likely those consequences are ta happen. In particularly difficult cases, senior management mey need to refer the matter upwards and in some cases it may be necessary to consult Ministers. ‘This pro to ensure that appropriate visibility and consid takes place, life-saving intellige designed ‘ation af the risk of unlawful actions (©) He knows what the consequences will be and those consequences include torture or mistreatnert 39. ‘The procedure is initially the same as for (b) above, with the matier being referred upwards as required. However if, even with the use of caveats and/or assurances, it is known that the consequences will include torture or mistreatment then the action will not be allowed to proceed, The Agencies will not authorise any of an individual, 40. It is unlikely that any single instance of acceptance by an officer of information from a liaison service will amount (o a criminal offence or a breach of civil or international law. 41. However, it is possible that recciving information from a liaison service, via comrespondence or fisison meetings, could incite that Hiaison service to mistreat detainees in order fo maintain or develop the liaison relationship. For exemple, a liaison service knowing that the Agency was interested in obtaining futher information from a detainee might incorrectly conclude that the Agency would war them to obtain it, if necessary, through torture or mistreatment. 42, Where the Ageney knows or has reason to believe that a particular liaison quay 20 P141 Apeney should astra ceive such information. If it ig not considered possibie to obtain veliable assurances, or if there is any doubt about the reliability of assurances reecived, senior management, taking advice from the LAs as ‘quired, mnst decide whether to continue to receive such information, As above, all of the relevent circumstances will be (aken info account. in particularly difficult ca senior management may need to refer the matter upww es il may be necessary to consult Ministers. This process is designed (o ensure that appropriate visibility and consideration of the risk of unlawfu) actions takes pla es, ds, and in some e4 43, In any case where a credible allegation or other information is received that ‘orture or other mistreatment has been used on a detainee, this should be drawn to the sttention of relevant menagers. Where that detainee has provided information to the Agency, it will also alert other relevant Departments, Agencies and Ministers. The particular Ageney will also consider whether (o raise the alle contacts within the allegation or information is reecived in a case where assurances have been obtained, this would also have implications for the credibility of any future a particular liaison service, If such ssurances from that liaison service ity and use of detainee information 44. ‘The efroumstances in which detainee informat relevant in assessin, seek as much context a n has been obtained will be s reliability. Accordingly, the Agency should wherever possibie Possible, particularly if the intelligence is threat-related. However, the Agencies’ ability to do this is often limited and, in any event, they may not press to be told the precise sourcing where to do so might damage co-operation and the future flow of intelligence from the liaison service in questio 45. It is established as a matter of Iaw that information may be used as the basis for operational action, whatever the circumstances in which it has been obtained. However, where it is established that information has been obtained by torture, it is not possible 10 rely on that information in legal proceedings, for instance to justify the Agency's operational actions o fo support the taking of steps against an individual, such as deportation or exclusion. LAs are able to advise on the possible application of this evidential bar in particular cas : BLa2 oN Busses WEEN STS) SOOzAr| Sol eo00S ToRse par SSINBal $84] (ror Befans 6q Kew oy) ‘8002 Inr g@) 216-200} Z000-O} WORSERET SONOS SB zee 0102 eunr 42 JO 48gIIg 29;}SNF AW J Jeps0 Uy 0} JUeNSINd SiNpeyog eiNsojosig Uado SAS!83 Liisom with Security and tnt Services of eowntries with poor human Page Loft Liaison with Security and Intelligence Services of countries with poor human rights record This note sets out the Service's policy on liaisons with the security and intelligence services of countries with a poor human rights record. The Service is committed, in its work, to maintaining respect and consideration for others. This applies both in the domestic sphere and in overseas liaison, The Service therefore applies particular care when liaising with the security and intelligence service of countries with a poor human rights record. The Service will only maintain liaison with the security or intelligence services of a country with a poor human rights record where it is necessary to do so in pursuit of the Service's functions (for example where the country concerned has access to intelligence about threats in or to the UK) or, exceptionally, where there are compelling foreign policy reasons to maintain the liaison and to do so accords with the Service's functions. Judgements in difficult cases are reached in consultation with other departments such as the FCO and the Cabinet Office. In conducting such liaisons, the Service dees not condone any abuses by the country concermed. ‘The Service will ensure that it passes only that intelligence which is necessary to achieve the purpose for which the liaison is maintained. The Service will not pass intelligence which it believes is likely to lead to an abuse of human rights by the liaison service or example intelligence which is likely to lead to arrest and torture) If members of the Service involved in such a liaison have any concerns about how the liaison should be conducted, they should feel free to discuss their concerns with their line manager, or with Il (Head of Liaison). Back to the Top El pmro-ign tiason This page was last updated on 31 August 2002 by, ey 10/02/2004CY POLICY ON LIAISON WITTE S SECURITY AND INTELLIGENCE SEI IN RELATION TO DETAINEES WHO MAY BE SUBJECT TO MISTREATMENT Overview 1. The Security and Intelligence Agencies (“the Agencies") do not participate in, solicit, encourage or condone the use of tortire or inhuman or degrading treatment (referred tw in this paper generally. ts “mistreaiment”). “They will therefore not carry out any action which itis known will result in torture or inhuman or degrading eminent. -AL the same (Ime, the Agencies nced to work with a range of overseas security ‘nd intelligence services (“liaison serviees") for the proper discharge ot leit fimetions. “This policy sets out the legal issttes on dealing. with Faison services where the “Auencies’ actions might result ia individual's mistreatment in detention at the hiands of a liaison serview. Tt Suggests practical ways to eliminate or minimise, s0 far as possible. the Fisk of such mistreatment and, at the same time, unlawil actions by the ‘Agencies and their sta, 2. “the poliey does not cover the ciecumstances in which the Agencies ave directly involved in the questioning of an individual in the eustody of liaison service, for which there is separate wuidanes © The Agencies need 10 develop and maintain close working Finks with @ wide and growing range of liaison services for the proper dlischanzo of their functions. ‘This involves passing, seeking and receiving information + ‘Pho Agencies do not participate in, solicit, encourage or condone the use of torture or inhuman ‘or degrading tteatinent. The Agencies will not earry out any action which itis known will result in torture or inhuman or degrading treatment + "Where the Agencies foresee a real possibility that their ations will result in an individual's mistreatment, they will consider applying seaveats or seeking prior assurances before acting in order to ‘eliminate or minimise the risk of mistreatment + Where, nowwithstanding any caveats or prior assurances, there is sill considered to be a wal possibility of mistreatment and therefore there is considered to be risk that the Agencies” actions could be judged to be unlawful, the actions may not be taken 04be judged! to have aeted unlawfully. Policy 8 ‘The Security and fatelligence Agencies do not participate in, solicit, encourage or condone the use of torture oF inhuman or degrading {reatment. For reasons both ethical and legal, theit policy is not to carry ‘out any action which they know would result in torture or inhuman oF dograding treatment. Where there is considered to be a risk that the ‘Agencies’ actions will be unlawil, the aetions may not be taken without tuthority at & senior fevel. In some eases, Ministers may need to be 9. “The Sceurity and Intelligence Acts vequive that, before passing information to. or seeking oF receiving information frotn a lixison Service, tle officer dealing with the ease must be satisfied that his actions are rnevessary for the proper discharge of the pavticular Agencies’ functions, All of the relevant vircumstances need to be considered. ‘These will include the potential or anticipated benetits from passing, seeking oF receiving the particular information, as well as any poteatial negative consequences. Ifthe possibility exists that information will be or has been obiained through the anistreatment of detainees, the negalive consequences may inehule any potential adverse effeets on national sccurity if the faet of the Agency seeking ar accepting information in those circumstances were to be publicly revealed. Far instanee, it is possible dal in some circumstances such @ revelation could result in Farther radiealisation, leading to an inereas> in the threat icin terrorisin, ‘or could result in camage to the reputation of the Agencies, leading to 9 reduction in the Agencies’ ability to discharge their fictions effectively. Where there is the poternial for such negative consequences to autweigh the benelits, advice should be taken as appropriate 10, Even if the proposed actions satisfy the test under the Security and Intelligence Acts, there are # number of ways in which they might: ()_beunlawful under UK. criminal lays (Gi) be unlawFil under UK civil few; of ch of intemational law. Gif) put the UK in bre @) Criminal taw, 85U1. Officers of the Agencies will commit a criminal offence where {heir actions nid, abet oF incite the commission of a eriminal ollence tunder UK ln by a liaison service oversems. The offence committed could be: (a) tortures (b) _& breach of the Geneva Conventions Aet 1987 (ioriere or inhuman treatment ofa detainee entitled to the protection of the scheduled conventions or the first protocol) and wf the {ternational Criminal Court Act 2001; or (0) misteasance in public office fe) Torture 12. Soetion 134 of the Criminal Justice Act 1988 reads as faltows 2 public official or person acting in an official eqpacity, whatever his ‘nationality, commits the offence of torture fin the UK op clsewhere he intentionally inflicts severe. pain or suflering on another in, the performance or purported’ performance of hie olfigial duties.” {is immaterial whether the pain or suffering is physical or mental and Whether «is caused by an act or an omission: subsection (3), 43 alt am olfence lor an otficer to incite the offence of torune {aumitted by @ foreign lisison service. An officer wil be gully of iceutament where he intends t incce torture by his actions er, possibly. [ere he knows or believes tha torture will result trom hia actions: Peg Lnis purpose, deliberately closing one’s eyes to the consequences of oncra ‘cllons is deemed to be the same es knowing those eonsequcices 1a tig an ofnce for an officer to aid or abet the offence of torte committed by a foreign lisison service. An officer will be fable inp ding and abetting torture if he intcuds o and willy docs encournge 2nd tonnes caused by his actions, ‘The offence of aiding and abowing {rue tight also bo committed where the Agencies engaye inn jont {eperation With a lsison sevice or provide actual assistance to that licen service, e.g, by providing IM In those circumstances, an offrees who Sranges In a jim. operation or provides assistance, vithout having {tlached an approprite caveat or secured the necessary assumes ose further paragraphs 35 to 37 below), may aid or abet torture if he know oe believes thet uhe liaison service will comamit torture and his vondvet fe capable of assisting that torture and torture does in Inet resol 8615, _ In the context of these offences, the human rights recor of the sate and tiaison service in question will of couse be a relevant factor, although there is» difference between what is known and what is tumour and unproven reporting, 16) Breach of the Geneva Conventions Act 1957 and the Intermunional Criminal Cont tet 2001 16, Under section 1 of the Geneva Conventions Act 1957. ‘Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abels oF procures the commission by any other person of, a grave breach of any of the scheduled conventions or the first protocol shall he guilty of an fone 17, ‘The scheduled conventions are the 1949 Geneva Conventions | to IV aad the first protoco! refers to the 1 977 Geneva Protacal 1. These apply to prisoners of war, eivitians in detention and certain other categories af person. For the purposes of this offence, the slats the detaince wil therefore be ertial, However, the offence will only apply in situations arising out of armed confit. 18. Any torture or inhuman (but not degrading) treatment of a detainee conttled (0 the protection of the scheduled conventions ot the: irat protocol will amount to a “grave breaeh” under the Aet and therefore w criminal offence. An officer may aid, abet or incite the olfence in the same way as described in paragenphs 13 andl 4 above, 19. _ 1 oll also be an offence under the tntemational Criminal Court ‘Act 2001 to aid, abet or incite a person to commit a “war erie”. War crimes include grave breactes oF the Geneva Conventions, (2) Misfearance in public offiee 20. One other offence could also be committed. The common law offence of misfeasance in public office can be committed where a pub oficial wilfally neglects to perform a duty which he is bound to perform by common law oF statute. I is conceivable that this offence vould be used to prosecute public officials who have sanetioned torture in some way. However, the offence is unlikely to cover situations not caught by the above offences and so does not need! to be considered futher for the purposes of this paper. a) Gi (o Section 6 of the Human Rights Aet i law 8721. Under section 6 of the Human Rights Act 1998 it is unlawfil foe a public authority 10 commit torture, ar to inlliet inhuman and degrading Weatment, as this would be incompatible with a convention right: Article 3 of the European Convention on Human Rights (“the ECHR"), the Prohibition of torture. However, for the Act to apply in relation to detainees held overseas, the UK would need to be in “effective conttol of the aren in which the detainee was located, as the peimany jucisdiction Of the Act is territorial. The Aet is therefore unlikely te apply in the situations covered by this poliey, (b) Trespass against the persotr andl false imprisonment 22. Misireatment and torture could also amount ta the tort of trespass against the person or possibly false imprisonment. In theory, a victim of such mistreatment could bring an action for damages against cither tie ‘Agency or their officers, where an officer had instigated « foreign liaison service o carry put an act whieh caused the torture of mistzvatinent oF a individual and those consequences were reasonably foreseeable, A civit action eould also be brought in similar circumstances on the basis of imisfeasance in public office, The remedy far such actions would he damages, Gi) International awe 23, ‘The UK is a signatory to the United Nations Convention against Fortwe (“UNCAT™) (as well as related provisions on torture in. the ECHR and the lotemnaiional Covenant on Civil ane Political Rights CICCPR"), Article 2 of UNCAT prohibits torture. Atticle | defines tosture as “any act by which severe pain or suffering, whether physical oF ‘mental, is intentionally inflicted on a person for such purposes as obtaining from him or « thie! person information or a confession, punishing. hin for an act he or a thied person has committed or is suspected of having commited, or intimidating ar eoercing him or «third person, or for any reason based on diserimination of any. kind, when such pain oy suffering is inflicted by or at the instigation of or with the consent of publie official or other person acting in an official capacity.” 24, UNCA'T requires States to tke eflective measures to prevent acts ‘of tortuce within its jurisdiction, UNCAT"s requirements are met by the UK through the ereation of the criminal offence of torture (as above), However, where the actions of members of the Agencies amount to this offence, those actions could also lead to a finding that the UK was in ‘breach of UNCAT. 8825, Both the ECHR and the ICCPR also contain prohibitions aguinst torture and inhuman and degrading treatment, However, as these only apply where a detainee is subject to the UK's jurisdiction, they are "unlikely to apply in the situations eovered by this policy. 26, ‘The UK might be fiable under international law where the actions of members oF the agencies provide aid or assistance to another State with a view to facilitating the commission of an internationally weongtul aet (sce Drali Anicle 16 of the Articles on State Responsibility adopted by the International Law Commission). However, this would only apply Where the members of the agencies net, knowing ‘of the proposed ingerationally wrongful act and with a view co facilitating, it, an thet aid oF assistance actually facititates the wrongful act. While the fel Position is not elear, where infoxation is received wander an ongoinis Haison arrangement fiom a country known to use tortere systematically, there could also be a risk that the UK would have fled to comply with its duty under customary intemational Inw (as reflected in deaft article 41 of the 1,C"s drat articles on State esponsibility) to cooperate to being an end! to the use oF torte in such a State. However, the risk of a breach ‘would be significantly reduced where positive steps are taken (o ty Wo prevent torture by obtaining credible assurances." There would be ny {reach of this duty where, for example, sporadic use of torture might be suspected Rates aad responsibilities 27. Al welevant ageney staff shuld ensue tha th the guidance in this paper, together with any related advice civeulated 5) the Agency. Nominated staff wil be responsible for deciding whethet to Droceet! i cases where there is consideted to be a risk of mistreatment and they will aso be required to form judgments about the adequacy of caveats and assurances. In eases of particular difiully oF sensitvity, or where there is considered to be a sisk of mistreatment notwithstarcdng any eaveats or assurances, the decision should be referred to nominated Schior ste, are Familiar with 28. The Leuel Advisers in both Agencies will be able to advise on any {egal issues tha arise in particular eases. These will inchude whether what is known about a particular state ar lisison service, or what is known ino cular case, means that there is foresight of a real possibility of inistrcatment, The LAS will aso be able o advise whether anticipated Consequences amount to torture or mistreatment. (For instance mistreatment can include treatment other than phiysical injuy, It ean ichude mona cruelty and could potentially avise fiom indefaite and Unlawful detention.) Advice can also be given on the status of «detainee and whether he is entitled to the protection of the Geneva Conventions 89They will also be able to advi assurances that have been received on the adequacy of any caveats ot 29. Different considerations will apply depending on whether the Agencies: (1) pass information to a liaison serviee, which may result in an individual's detention or be used in the questioning of individual in detention, or when seeking infarmation fron 4 liaison servive, which may he obtained Trem an individual in detention; or 2) receive information tiom a Hiaison service, which may have fhoen obtained from ae indlivietal in detention, a ssing.or seeking informaion 30. “The officer must consider whether his actions might result in the Contre or mistreatment ofan individual, He needs to identify which of the Jollowing isthe ease: (@) he Knows that his actions will not result in torture or ‘mistreatment or he_does got foresee a peal possibility that stich consequenses will resuly {b) while he does not know, he foresees a real possibilty that the consequences of his actions will include torture. or mistreatment; or (©) lie knows what the consequences of his actions will be and shose consequences include torture or mistreatment. (a) He knows that his actions will not result in torture or misireonnent or he does not foresee a real possibilty that such conseguences will result 31. In accordance with standard practice, before passing any information to a Tiaison service, an officer should always attach the staidard liaison caveat to the information: “This information has been ‘communicated in confidence to the recipient government and shall not be released without the agreement of the British government” 32. Where the oificer does not foresee a real possibility that the consequences of his actions will include torture or mistreatment, or where 90tie knows that sue consequences will not result from his tetions, a further caveats are necessary. To proceed wil be lat 33. ‘The critical question is what steps should the officer take to inform himself before deciding whether he foresees real possibility. Whilst there is no legal obligation on staff to seok out potentially. relevant information, the officer shoald ensure that he is reasonably well inforaned ‘ofthe prectices of particular states and liaison services, G) While he does not know, fe faresees « real possibility thet the consequences will inchude torture or mistreatment 34. IF the officer foresees a real possibility that his actions will result in torture oF mistreatment, he must refer the. senior line ‘management before proceeding Sure: 35. Line management may eonclude that here is nota real possibility that mistreatment will occur, in which ease the officer may preweed, But if Fine management share the assessment of the oftiver, they should jeonsider attaching a further caveat to the information or request, in addition to the standard liaison cavent set ost above, A futher caveat ccould be to the effect that es appropriate 2) tho information shoud not be used as the basis for exeeutive ‘ction; Gi) the information should nor be used as the basis for ‘questioning ary individual; Gil) ithe information is 10 be used as the basis for questioning ‘any individual, sich questioning should conform with international fegal standards, (iv) the information sought should net be obtained fiom any individual in detention; or () if the information may be obtained fom any individual in detention, the questioning of him should conform with international legal standaeds 36. However, a caveat is only of value if the offiver es. thai it will be observed, so thal if eliminaies the wlividual might be ‘isineated 2s a eau 37. Af it is not thought that caveats stone will suffice, management should consider seeking specific assurances from the liaison service in {question 10 prevent any mistreatment occurring. Any assurauces must be 1reliable and credible: ap assurance w In is of no However, once such apparently reliable a fe been reccived, the intended action may be authorised and miay proceed. twill be law 38. AF it is not considered possible to oblain reliable assurances, or if there is any doubt about the reliabitiy of assurances veceived. the matier should be ceferred to senior management before proceeding, further ior management, having taken advice from the LAS as they juxlge fnecessiry in the particular citeumstanees, will decide whether to authorise the proposed action. They will balance the tisk of mistreatment and the tisk that the officer's actions could be judged to be unlaefil ‘aycinst the need forthe proposed action, All ofthe refevant eitcuistances will be ten into accout. ‘These will include the operational imperative for the proposed action, such as if the action involves. passing. or obtaining life-saving intelligence, the level of mistreatment anticipated and how likely those consequences are to happen. In particulary difient ‘eases, senior management may need (o eefer the matter upwartly and it Some cases it may be necessary to consult Ministers. This process is «designed to ensure that appropriate visibility and consideration of the ist ‘of unlawtil actions takes fe) Me knows whar she consequences will be ane thase conseswences ‘include torture or misreciment 39. “The procedure is initially the same as for (b) above, with the ‘matier being referted upwards as required. However iff even with the use gf caves andlor assurances, iis known that the consequences, will include torture oF mistreatment then the action will not be allowed to proceed. The Ags horise an iLis known 2) Receiving information 40. 11 is unlikely that any single instance of avceptance by an officer of information from a liaison service will amount to a criminal offence or a breach of civil or international law. Al. | However it is possible that reveiviny information from a liaison service, via correspondence or fiaison meetings, coutd incite thet liaison service to misitea! detainees in order to mainiain or develop the liaison relationship, For example, « liaison service knowing that the Ay interested in obtaining ‘further information from a detainee might incorrectly eonelucle thot the Agency would want them te ebiain ite if nevessaty, through torture or mistreatment a2 Wh the Agency knows of has reason ta believe that a party 10 92liaison. service civ mist {© obtain information, the_Awenoy shoul iain, fore, continuing. receive suciinformation. I itis not consi se © obtain seiable assurances, or if there is any doubt about the reibily of assurances seeeived, senior management, taking advice from the LAS as required, ‘must decide whether t0 continue 1o receive such information, As abun all of ‘the relevant citcumstanees will be taken into. account, i particularly difficult cases, senior management may need! to refer the matter upwards, and in_ some cases it may be neeessay to consul Ministers, This process is designed to ensure that appropriate visibility and consideration ofthe rsk of unlawdu actions takes place 43, | Iv any case where a crucible allegation or other information is received that torture or other mistreatment has b ds this should be drawn (© the atiention of relevant managers. Where that detainee has provided information to the Agency, it will also alert other relevant Departments, Agencies and Ministers. ‘The particular Agen; \wil also consider whether to raise the allegations with their own contacts within the particular Faison service, IP such an allegetion or information 3s received in a case where assurnnces have been oblained, this would vo have implications for the credibility of any future assurances rom that faison service. Reliahifity and use of dex 44, The circumstances in which detainee information das beon obtained will be relevant in assessing its reliability. Aecoringly, the Aueney should wherever possible seek as much context as possible, particularly i the incelligence is threatrclated. However, the Agencie bility to do this i often limited and, in any event, they may not press to be told the precise sourcing where to do so might damage co-operation a the future flow of intelligence liom the linison service in question 45. itis established as « matter of law that information may be used as the buss for operational action, whatever the circumstances in which it has boen obtained. However, whore itis established that information his been obtained by torture, itis not possible to rely on that information in legal proceedings, for instance to justify the Agency’s operational actions OF to Support the taking of steps agains! an individual, such as deportation ‘oF exclusion. LAS are able to advise on the possible applicttion of this evidential bar in particular eases, 28 July 2006 "1 93End OF Document 12 9495 220 ret SNDSSS HO-SNISS YA uByDMOL4 13