65

1. Claimant: All Claimants
2. Name of Witness: S. Malik
3. No of Statement: 4
4. Exhibits: 4
5. Date: 12 July 2010

IN THE HIGH COURT OF JUSTICE
Claim No: HQ08X01180
HQ08X01416
HQ08X03220
HQ08X01686

QUEEN'S BENCH DIVISION

BETWEEN
(1) BISHER AL RAWI
(2) JAMIL EL SANNA
(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
(5) THE HOME OFFICE
Defendants

Exhibit 'SM22'

This is the exhibit marked 'SM22' referred to in my fourth witness statement.

Dated

.JZ/O}~.f{P

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SIS-OPEN DISCLOSURE PURSUANT TO MR JUSTICE SILBER'S ORDER DATED 21 JUNE 2010
Re~erei'fce,~i¥ti!ll$\

0-001
0-002

IAprl12005

0-003

IJuly 2006

Objections.to inspectiol
Yes, redacted
11-2
Chapter 32 of SIS's general procedural manual entitled Detainees
land Detention operations
IYes, redacted
Agency policy on liaison with overseas security and intelligence
Iservices in relation to detainees who may be subject to
IYes, redacted

13-5
16-15

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lU, Ql\JD1\ DETAINEES

.1..
Thank you for making such a qood and determined sta:ct on
interviewin . Al Qaida detainees; we can see a].1 sorts of likely
benefits.

2.
There are one or two legal points worth repeating and/or
clarifying, some with particular I'eferenC~r some more general .
. . has asked that you share these with MI

4.

With regard to the status of the prisoners, under the various

Geneva conventions and protocols, all prisoners, however they are
described, are entitJ.ed 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 requi.re you to intervene to prevent this. That
said, HMG's stated co~nitment to human rights ~takes it important that

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the Americans understand that \tJ8 cannot be party to such ill
treatment nor can we be seen to condone it.
In 110 case should they
be coerced duri.ng or i.n conjunction with an SIS j.fltervi.ew of them.
If ci.rcumstances aJ.low, you should consider dJ~awing thi.s to the
att011t1.on of a suitably senior US official locally.

5.
"It is 5.mportant that you do not engage in any activity yourself
that involves inhumane or degrading treatment of prj.soners. As a
representati.ve of a UK public authority, you are obliged to act i.n
accordance witl1 tlle J1urnan Rigl1ts Ac·t 2000 which prohibits torture, or
inhumane or degrading treatment.
AJ.so, as a Crown Servant, you are
bound by Secti.on 31 of the Criminal Justice Act 1948, which mak~s
acts carried out overseas j~n the course Of your offj.ciaJ. duties
subject to Ul< criminal lah
In other \IJol~ds, your actions incur
criminal liabj.lj.ty j_n the same wjy as if you weI's carrying out tll0se
acts in t.I)e UJ.<.
T •

6.
I f you requ,Lce further gUidanccle~=;=;
issues, please contact either
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69

Chapter 32: Detainees and Detention Operations

Responsible section:.

L1

SIS opel"ations involving detainees fall into thr-ee bl'Oad categor-ies:

a.
operations to detain terrorist suspects in which SIS either directly
participates or to which SIS's ex or- opint contributes;
b.

the interviewing by SIS officers of detainees to obtain intelligence; and

c.

the issuing of

ex

or opint obtained by liaison services from detainees.

1.2 All categories of operation carTy particular- sensitivities. Staff should consult
LA section early in ti,e planning stage of all operations relating to detainees.

DETElHION OPERATIONS

2.1.

1'01' detention operations (para L1.a) the following particular sensiUvities

al'ise:

a.
the geographical desUnation of the target. Where will lie or- she be held?
Under whose jur-isdiction? Is it clear that detention, rather tllan killing, is the
objective of the operation?
b.

. what treatment regime for' the detainee(s) can be expected?

c.

what is the legal basis for the detention?

d.

what is the role of any liaison paltner 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 par-a
--.
.:..
1.1a. In some cases SIS's Intelligence goes into a melting pot ..
~ perhaps over weeks. The operationai outcome from a
single piece of inte Igence will be hard to predict or identify. Those responsible
for making the dedslons may themselves be unaware of the use to which a
particular item will be put. When they are aware they 1'1111 not necessarily know
that SIS was the source of that item. Staff should consult HO before initiating
any new collaboration of this k'tnd with a liaison sel'vice or with.
'~~-'

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2A In other detention opel-ations, SIS prOVide.
and very specific items of
intelligence, and sections will either know or have reasonable suspicion that SIS's

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intelligence will be used for the purpose of detention. III these cases, staff must
consult ~at the outset before sharing the intelligence.

INTERVIEWING DETAlNEI:S
3.1 The interviewing of detainees by SIS officel's (pal"a 1.1b) requires us to be
alert to additional factors:

a.
the nationality of the detainee. SIS would nOI"mally expect UK citizens to
be interviewed by Secul"ity Sel"vice officers. UI( citizenship will also raise consular
issues;
b.

the treatment I'eglme witnessed by, or desulbed to, SIS intel'viewel"';.

3.2 In compliance with HlvJG's obligations undel' international treaties, all
intc'rviews must be frec' fmm pl'essure 01' coercion and mlJst not Include Inhumane
or degrading treatment. The following techniques Me forbidden:

a.

Hooding at any lime;

b.
Obscur"lI1g vision during Interview (although the blindfolding 01" obscuril1C] of
vision during arrest 01' transit on security grounds is re~Jarded as acce:;ptalJk~);

c.

F'hyslcal punishment of iJny SOI"t (beatings, etc);

d.

Use of stmss positions;

e.

Intentional sleep deprivation;

f.

Withdrawal of food, water or medical help;

g.

Degrading treatment (sexual embalTassment, religious taunting etc);

h.

Use of 'white noise';

I.

Torture methods such as thumb screws etc.

3.3 If an officer witnesses any of the above techniques being used in interview
or any othel" form of mistreatment in interview, the officer should request the
interview to stop, make his concerns known to the detaining authority, withdraw
fwm the intelview and report the incident immediately to HO.
3.4 If a detainee complains of misU'eatment 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.

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RECORD I<EEI'ING

4,1
Any membel' of staff wllo conducts or witnesses tile intel'view of a detainee
must complete aQe,('WJe,,_<::ollla.~tR_ej),QI:l(OCR), wllicll is available in tile Office
Info Cabinet. A OCR must be completed for eacll and every illterview
uncJerta ken.
4,2 The blank OCR is unclassified and can be sllown to liaisons or OGDs at tile
offieel"'s or tile Station's discretion, Once a OCR is completed, it sllould be
ITlclrked
or h'lghol',
4,3 All DCRs will Ilave a _ autofile refel"once, Tile, relevant dosks
operational teams Illay aiso mal'ie DCRs to tlleir own files,

01"

4.4 Tile action addressee of tile OCR sllould be tile
It sllould be
copied to _and
Officers may add any otllel" I"elevant desk officers to tile
distribution,

11II

4,5
Officel's must complete and file the OCR witllin one week of the interview,
But tlley must report any impropel" conduct immediately, Officers may also fili in
the DCR by hand and then scan it into the system,

LJAISON REPORTING
5,1
The i3riUsh Government, incluclincJ SIS, is vehementiy opposed to tOI"lUI"C as
a matter of fundamental principle and neve,," uses tortul'e for any purpose,
including to obtain infom,ation, Nor wouid we instigate othel"s to commit tOI-ture
for that 01' any other purpose, In pracUcal tem,s this means tllat, in
circumstances where you Me aWMe that iiaison reporting has been obtained from
detainees and you know or reasonably suspect the I-eporting has been obtained
from tOl'ture, you must repol-t this at the eal'liest possible opportunity t o _
copied t o .

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AGENCY POLICY ON LIAISON WITH
OVEHSEAS SECUlUTY AND INTELLIGENCE SEHVICES
IN HELATION TO DETAINEES
WHO MAYBE SUBJECT TO MISTHEATMENT

Overview

J.
The Security and Intelligence Agencies ("the Agencies") do not participate in,
solicit, encourage or condone the usc of torture or inhuman or degrading treatment
(referred to in this paper generally as "mistreatment"). They will therefore not carry
out any action which it is known will result in torture or inhuman or degrading
treatment. At the same time, the Agencies need to work with a range of overseas
security and intclligence services ("liaison services") for the propcr discharge of their
functions. This policy scts out the legal issues on dealing with liaison services where
the Agencies' actions might result in an individual's mistreatment in detention at the
hands of a liaison servicc. It suggests practical ways to eliminate or minimise, so far
as possible, the risk of such mistreatment and, at tbe samc time, unJawfiJ! actions by
the Agencies and their staff.
2.
The policy does not cover the circumstances
directly involved in the questioning of an individual
service, for \vhich there is separate guidance.

Jl1
1I1

which the Agencies arc
the custody of a liaison

Key Poiuts
•

The Agencies need to develop and maintain close working links with a wide
and growing range of liaison services for the proper discharge of their
f-unctions, This involves passi.ng, seeking and receiving information.

•

The Agencies do not participate in, solicit, enconrage 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 inhuman 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 sceking
prior assurances before acting in order to eliminate or minimise the risk of
mistreatment.

•

Where, notwithstanding any caveats or prior assurances, there is still
considered to be a real possibility of mistreatmcnt and therefore there is
considered to 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.

Context

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Under both the Security Servicc Act 1989 and the Intelligence Services Act
1994 ("the Security and Intelligence Acts"), it is tbe duty of tbe Director General and

3.

the Chief of SIS respcctively to ensure tbat there arc arrangements for securing that no
information is obtaincd or disclosed by the Agencies except so far as is necessary for
the proper discharge of their separate nmctions.
4.
The Agencies' flll1ctions are set out in section I of botb of tbc Sccurity and
InteJiigcnce Acts. Thc functions include the protection of national security, in
particular against threats from terrorism.
5.
The most substantial terrorist threat currently faced by the UK comes from AI
Qaida and from groups affiliated to or inspired by it. This tbreat is uniquely
transnational and requires an international response. Its emergence particularly since
September 2001 has Icd to increased eo-operation between governments, including on
security/intelligcnee channels. The need for enhanced international cooperation to
combat the threat hom AI Qaida and its affiliates was recognised and has been
emphasised since September 2001 in, for example, UN Security Council Resolution
1373.
6.
In these circumstanees, thc Agencies need, for the proper discharge of their
scparate functious, in particular the protcetiou of national security against threats from
terrorism) to develop and maintain close working links with a wide and growing range
of liaison services. 'Ihis involves passing seeking and receiving infc)rITlaflon.
l

7.
However, the observance of lJuman rights standards by liaison services and
states varies. The UK is required, in particular under thc United Nations Convention
against Torture and customary international law as reflected in the draft articles of the
Inten1iltional Law Commission ("the ILC") on State Responsibility, to prevent acts of
torture within its jurisdiction and to cooperate to bring to 311 end acts of torture
amounting to serious breaches of the ILC by other states. The Agencies are
committed to ensuring so far as possiblc the observance of human rights by liaison

services and work with liaison services to achieve this. In addition, passing
infol1llation to and seeking and receiving infonnalion from liaison services, where this
might cause or result in an individuars mistreat111cnt, can in certain circumstances
contravene UK law. For all these reasons, it is clearly 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 unlawfull y.
Policy
8.
The Security and Intelligence Agencies do not participate in, solicit,
encourage or condone the usc of torture or inhuman or degrading treatment. For
reasons both ethical and legal, their policy is not to calTy 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 unlawflll, the actions may

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not be taken without authority at a senior level. In some cases, Ministers may need to
be consulted.

Lay\,
9.
The Security and Intclligence Acts rcquire that, before passing inlcmnation to,
or seeking or receiving information hom a liaison service, tbe officer dealing witJ] tbe
case must bc satisficd that his actions arc ncccssary for tbe proper dischargc of tbe
particular Agencies' functions. All of the relevant circumstances need to be
considercd. Tbese will includc the potential or anticipated bcnefits hom passing,
seeking or recciving the particular information, as well as mil' potential negativc
consequences. If the possibility exists that infonnation will bc or bas bcen obtained
tbrough tbe mistreatment of detainees, the negative consequences may include any
potential adverse effects on national security if the fact of the Agency seeking or
accepting infol1113tion in those circumstances were to be publicly revealed. For
instance, it is possible that in some circumstances such a revelation could result in
further radicalisation, leading to an increase in the threat from terrorism, or could
rcslrlt in damage (0 the reputation of the Agencies, leading to it reduction in the
Agencies' ability to discharge their fnnetions ciTectivcly. Where there is the potential
feJr such negative consequences to outweigh the benefits) advice should be taken as
appropriate.
10.

Even if the proJlosed actions satisfy (he (cst under the Security and

Intelligence Acts) there arc a number of ways in which they rnight

(i)

be unlawful uuder UK criminal law;

(ii)

be unlawful under UK civil law; or

(iii)

put the UK in breach of international law.

1].
Officers of the Agencies will commit 3 criminal offence where their actions
aid, abet or incite the commission of a criminal offence under UK law by a liaison
service overseas. 'TIle offence committed could be:

(a)

torture;

(b)

a breaeh of the Geneva Conventions Act 1957 (tOlime or inhuman
treatment of a detainee entitled to the protection of the scheduled
conventions or the first protocol) and of the Jnternational Criminal
Court Act 2001; Or

(c)

misfeasance in public office.

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(a)

Torture

12.

Section 134 of the Criminal Justice Act 1988 reads as follows:
"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
intentionally ini1iets severe pain or suffering on another in the performance or
purported performance of his official duties."

Jt is immaterial whether the pain Or suffering is physical or mental and whether it is
umsed by an aet or an omission: subsection (3).
13.
Jt is an offence for an omecr to incite the offence of torture committed by a
tClreign liaison service. An officer will be g11ilty of incitement where he intends to
incite torture by his actions or, possibly, where he knows or believes that torture will
result from his actions. For this purpose, delibcratcly closing one's eyes to the
consequences of one's actions is deemed to be the same as knowing those

consequcl1cCS.

14.
It is an offencc for an officer to aid or abet the offence of torture committed
by a foreign liaison service. 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 thc Agencies
engage in a joint operation \vith a liaison service or provide actual assistance to that
liaison service) e.g. by providing_ In those circumstances) an offlcer who
engages in a joint operation or provides assi.stance) without having attached an
appropriate caveat or secured the necessary assurances (see further paragraphs 35 to
37 below), may aid or abet torture if he knows or believes that thc liaison scrvice will
commit torturc and his conduct is capable of assisting that torture and torture does in
fact result.
15.
In the contcxt of these offcnces, the human rights rccord of thc state and
liaison service in qucstion will of coursc be a rclevant factor, altl10ugh there is a
difference between what is known and what is rumour andnnproven reporting.

(6)
Breach of the Geneva Conventions Act 1957 and the international Criminal
Court Act 2001
16.

Under section 1 of the Geneva Conventions Act 1957:
"Any person, whatever his nationality, who, whether in or outside the United
Kjngdom, commits, or aids, abets or procures the commission by any other
person of, a gmve 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 1V and the
first protocol refers to the 1 977 Geneva Protocol 1. These apply to prisoners of war,

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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 mising out of armed conflict.
18.
Any torture or inhuman (but not degrading) treatment of a detainee cntitled to
the protection of the scheduled conventions or the first protocol will amount to a
"grave breach" under the Act and therefore a criminal offc'ncc. An offiecr may aid,
abet or incite the offence in the same way as described in paragraphs 13 and l4 above.
19.
It will also be an offence under the International Criminal Court Act 200 1 to
aid, abet or incite a person to commit a «(war crime", \\lar crimes include grave
breaches of the Gcncva Conventions.
(c)

Misfeasance in public office

20.
One other offence could also be committed. The common law offencc of
misfeasancc in pnblic officc C3n be committed where a public omc;al wilf'llJly
neglects to perform a duty which he is bound to perform by common law or statute. It
is conceivable that this offence could bc used to prosecnte public officials who have
sanctioned 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 further for the
purposes of this paper.

(a)

Sectioll 6 of the Human Rights Act

21.
Under section 6 of the Human Rights Act) 998 it is unlawful for a pubhc
authority to commit torture) or to inDict inhU111an and degrading 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 bc in "effective
control" of the area in which the detainee was located, as the primary judsdiction of
the Act is territorial. The Act is thcrefore unlikely to apply in the situations covered
by this policy.
(b)

Tre5jJass against the person and false imprisonment

22.
Mistreatment and torture could also amount to the tort of trespass against the
person or possibly false impJisonment. In theory, a victim of such mistreatment could
bring an action for damages against either the Agency or their officers, where an
officer had instigated a foreign liaison service to eany out an act which caused the
tOlture 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) Intemationallaw

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23.
The UK is a signatory to
CUNCAT") (as well as related
International Covenant on Civil
UNCA T prohibits torture. Article I

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the United Nations Convention against Torture
provisions on torture in the ECHR and the
and Political Rights ("ICCPR")). Aliicle 2 of
defines tort11re as:

"any act by which seyere pain or suffcring, whether physical or menta], is
intentionally inflicted on a person for such purposes as obtaining fTOm him or
a third pcrson information or a confession, punishing him for an act be or a
third person ],as committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, wben such pain or suffering is inflicted by or at
the instigation of or with the consent of a publie official or other person acting
in an offlcial capacity,l'
24.
UNCAl' requires States to take effective measures to prevent acts of torture
within its jurisdiction. UNCAT's requirements arc met by the UK through the
creation of the criminal offence of torture (as ahove). However, where the actions of
mcmbers of the Agencies amount to this offcnce, those actions could also Icad to a
lincling that the UK was in breach of UN CAT.
25.
Both the ECHR and the lCCPR also contain prohibitions against torture and
inhuJlli1n nnd degrading trcCl1mcnt. However) as these only apply where a detainee is
subject to the UK's jurisdiction, they are unlikely to apply in the situations covered by
this policy.
26.
Tbe UK might be liable under international law where the actions ofmcmbcrs
of thc ageneics provide aid or assistance to anothcr State with a view to facilitating
the commission of an internationally wrongful act (sec Draft Article 16 ofthe Articlcs
on State Responsibility adopted by the lnternational Law Commission). However,
this would only apply wbere tbe members of the agencics act, knowing of the
proposed internationally wrongful act and with a view to facilitating it, and their aid
or assistance actualiy facilitates the wrongful act. While the legal position is not
clear, where infol1l1ation is received under an ongoing liaison arrangCJ11ent from a
country )Q1own to use torture systematically, there could also be a risk that the UK
would have failed to comply with its duty under customary international law (as
reflected in draft article 41 of the lLC'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 rcduced where positive steps are taken to try to prevent
torture by obtaining credible assurances. There would be no breac;ll of this duty
where, for example, sporadic use oftorture might be suspected.
Roles and rcsponsibilHies
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

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there is considered to be a risk of mistreatment and they will also be required to form
judgments about the adequacy of caveats 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, tlle decision should be referred to
nominated senior staff.
The Legal Advisers in both Agencies will be able to advise on any legal issues
28.
that arise in particular cases. These will include whether what is known about a
particular state or liaison service, or what is known in a particular case, means that
there is foresight of a real possibility of mistreatment The LAs will also be able to
advise whether anticipated consequences amount to torture or mistreatment (For
instance mistreatment can include treatment other tban physical injury. It can include
mental cruelty and could potentially arise hom 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 to advise on the
adequacy of any caveats or assurances that have been rcccivecL

ProcedUl'C
29.

(1)

DiiTerent considerations will apply depending on whether the Agencies:

(1)

pass information to a liaison service) which may result: in an
individual's detention or be used in the questioning of an individual in
detention) or when seeking information from a liaison service, which
may be obtained from an individual in detention; or

(2)

receive information fiom a liaison service, which nwy have been
obtained fiom an individual in detention.

l'assinR or seeking inform?tion

30.
The officer must consider whether his actions might result in the lOli,lre or
mistreatment of an individu~l. He needs to identify which of the following is the case:

(a)

he knows that his actions will not result in torture or mistreatment QI
dO~Ulot forQ§.\,~e-iLreaLgl)ssil2iljty that such consequences wilJ
result;

Di'
(b)

while he does not know, he foresees a real possibility that the
consequences of his actions will include torture or mistreatment; or

(c)

he )<:110WS what the consequences of his actions willlJ.e and those
consequences include tortur~ or mistreatment

(a)
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
31.

In accordance with standard practice, before passing any information to a

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liaison service, an ofiicer should always attach the standard liaison caveat to the
information: "This infol1nation has been communicated in confidence to the recipient
government and shall not bc released without the agreement of the British
goYcrmnent
ll

,

32.
Where the ofiieer docs not [()resec a real possibility that the consequences o[
his actions will include torture or mistrccltmcnt) Or \vhcrc he knows that such
consequences will not result fiom his actions, no further caveats arc necessary. To
proceed will be lawful.
33.
The critical question is what steps should the officer take to inform himself
before deciding whether he foresees a real possibility. Wl,ilst there is no legal
obligation on staff to seck out potentially relevant information, the omeer should
cnsure that hc is reasonably well informed of the practices of particular states and
liaison services.

(b)
While he does not know, he .fiJresees a real possibility that the consequences
will include torture or mistreatment
3~.

If the oHiccr [i)resces a real possihility that his actions will result in torture or

mi streatm en t

l

he m_1J§j~ __ ._!:~·~.f~L~_.th~_-.lnj!t1~L_t9_ . . _bj s ~~.~!lL9x _ J.in~Dan~g~!2~L1LJ~~fQg:~

W~Q.g.9.yd iDg_...fi~.rtb.9.[·

35.

Ljne management may conclude that there is not a real possibility 1:118t

mistreatment \vi]j occur) in \vhic.h case the officer may proceed. But jf line
management share the assessment of the officer) they should consider attaching a
further caveat to the information or request) in addition to the standard liaison caveat

set out above. A tilrthcr caveat could he to the effect that, as appropriate:
(I)

thc information should not be used as tbc basis for cxeeutive action;

(ii)

the information should not be used as the basis for questioning any
individual;

(iii)

if the information is to be used as the basis [or questioning any
individual, such questioning should contorm with international legal
standards;

(iv)

the information sought should not be obtained fi'om any individual in
detention; or

(v)

if the information may be obtained from any individual in detention,
the questioning of him should confonn with intemational legal
standards.

36.
However, a caveat is only of value if the officer believes that it will Qf
obsfLyed, So that it eliminates the risk that an individu~l might be mistreated as a

P13

80

37.
If it is not tbought that caveats alone will suf1]ce, management should
consider seeking specific assurances from the liaison service in question to prevent
any mistreatment occurring. Any assurances must be reliable and credible: ?D
!~"S\'D\1}£,,--\yJ}j_Qh~!l.llQ.Lbc oh.s,erycsliu)f n()_salue. However, onCe sucb apparently
relinble assurances have been received) the intended action may be authorised and
may procccd. It will be lawful.
38.
If it is not considered possible to obtain reliab]e assurances, or if there is any
doubt abont the reliability of assurances received, tbe matter should bc referred to
senior management before proceeding further. Senior managcment, having taken
Advice fi-om the LAs as they judge necessary in the particular circumstanccs, will
decide whether to authorise the proposed action. They will balance the risk of
mistreatment and the risk that tbc officer's actions could be judged to be unlawfirl
against the need for the proposed action. All of tbe relevant circumstanccs will be
taken into account. These will include the operational imperative for the proposcd
action, such as jf tbe aclion involves passing or obtaining life-saving intelligence) the

level of mistreatment anticipated and how likely tbose consequences arc to happen. In
particularly difficlllt cases) senior management may need to refer the matter upwards,
and in some cases it may be necessary to consult Ministers. T'his process is desig)1Cd
to ensure thai appropriate vjsibiJity and consideration of the risk of unla\vful actions
takes place.
(c)

lie

}moHI,'}'

ivhar the consequences will be and tho.YC consequences include

torture or l?71'sfrealme.nt

39.
The procedure is initially the same as for (b) above, with tbe matter being
refeJTcd upwards as required. However if, even with the usc of caveats and/or
assurances} it is known that the consequences \vill include torture or mistreatment
then the action will not be allowed to proceed. Th",l',gcncies 0'>'i11 nqU\lHlQ.riscany
action..which it is k!lOWn will result in the m~\Lcatment QL,,-,,--i!l4iyigusl
(2)

RUOcivUJ£i!lformation

40.
lt is unlikely that any single instance of acceptance by an officer of
information Ji-orn a liaison service will amount to a criminal offence or a hreach of
civil or intemationa] law.
However, it is possible that receiving information from a liaison service, via
eOlTespondenee or liaison meetings, could incite that liaison servi-ce to mistreat
detainees in order to maintain or develop the liaison relationship. For example, a
liaison scrviee knowing that the Agency was interested in obtaining flll'ther
information from a detainee might incorrectly conclude that the Agency would want
them to obtain it, if necessaIy, through toriure or mistreatment.

41.

42.

W11ere the AgenQ.,Y knows or has reason to

be]i~eve

thll.Lll,jJarticu]ar liaison

P14

_
....

"

'. . .

,.._"" " .t,

scr\'i~SUj.ses_LortllL~()Lsltl"'.L}lli streatment

~

~

81

....

. . '. -.

.

to 0 btaiILi.DiQ1J11ati9JL.the

6g"n~y

shQ.ul ([

C()mi<cl£r.c) btaiJJjl)!L:1.S"llra !l.~",s"Q efo re ,CQl) ti nuingJQxceei ve~l!£!lj nfQXl11ati,m. If it is
not considcxed possible to obtain reliable assurances, or if there is any doubt about the
rcliability of assurances reccived, senior management, taking advice from the LAs as
required, must decide whether to continue to receive such information. As above, all
afthe relevant circumstances will be taken into account. In particularly difficult cases,
senior maJ18gemcnt may need to refer the matter upwards~ and in sornc cases jf may
be necessary to consult Ministers. This proecss is designed to cnsure that appropriate
visibility and consideration of the risk of unlawful actions takes p!aee.
43.
In any case where a credible allegation or other information is received that
torture or other mistreatment has been used on a detainee, this should be drawn to the
attention of relevant managers. Where that detainee has provi.ded in[cmnation to the
Agency, it will also alert other relevant Departments, Agencies and Ministers. The
particular Agency will also consider whether to raise the allegations with their own
contacts within the particular liaison service. If such an allegation or information is
received in a ease \vhcrc assurances have been obtained, this would also have
implications for the credibility of any future assurances from that liaison service.

44.
The circumstances in which detainee infonnatiol) has been obtained will be
relevant in assessing its reliability. AccordinglYl the Agency should wherever possible
seck as much context os possible, particularly if the intelligence. is thrcaHe!ated.
However, the Agencies) ability to do this is often limited and, in any event., they may
not press to be told the precise SOlJfCing \vhere to do so might damage co-operation

and the i\lture flow ofintelJigcncc Ii-om the liaison service in question.
45.
It is established as a matter of law 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 tmiure, it is
not possible to rely on that information in legal proceedings, for instance to justify the
Agcncis operational actions

01

to 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 pariieular cases.
'

P15

ISyS Open DisclOSu-re S-chedule pursuant to the order of I\IIr Justice silherOf21

0·0002
0-0003

002-012
013

28 Jul2008
Jul2006

LiaI~on with See;urity f:md lrlte:;lIi9E!nce SE!rvices of countries with poor human rights record
Agency Policy on Liaison with Overseas Security and Intelligence Services in relation to detainees
who may be subject to mistreatment
SyS Flowchart: Passing or seeking information which might result in mistreatment

June 2010

I

!Yes - requires redaction
INo

co
tv

83

Jj,lison with Security and Inl Services of countries with poor human rights records

Page I of I

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 se,vices
of a country with a poor human rights record where it is necessary to do so
in pursuit oHhe Se,vice's functions (for example where the country
concerned has ilccess 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 Cilbinet Office. In conducting such liaisons, the Service does not
condone any abuses by the country concerned. The Service will ensure that it
passes only that intelligence which is necessary to achieve the purpose for
which the liaison 'os maintained. The Service will not pass intelligence which it
believes is likely to lead to an abuse of human rights by the liaison service
(for example intelligence which is nkely 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 nne manager, or with _(Head of Liaison).

~.Forejgn

[i]Back to the Top
Liaison
This page was last updated on 31 August 2002 b ~

Iiaisonwith.htm

J 0102/2004

1

84

AGENCY POLICY ON LIAISON WITI!
OVERSEAS SECURITY AND INTELLIGENCE SERVICES
IN RELATION TO DKrAlNEES
WHO MA V BE SUBJECT TO MISTREATMENT

Overview

I.
The Security and Intelligence Agencies rthe Agencies") do not
participate in, solicit, encourage or condone the LIse of torture or inhuman
or dcgrilding treatmont (referred to in this paper generally <is
·'l1listrC<lllllcnt"). They will therefore not carry out an)' action \vhich it is
I-:nown will result il1 torture or Inhuman or degrading [reatment. At the
smnc timc, tlw Agencies need to work with a range of overseas sccuril)'
<uld intelligence services ("liaison services") for the proper d'ischarg,e or
tlleil' functions. This policy sels Ollt the legal issues OJl dealing with
liaison services where the Agencies' <lctions might result in all
individual's mistreatment in detentioll at the hands ofn liaison service. 11
slIg,gests practical ways to climimllc or min'lmise, so I'm as possible, tile
risk of such mistreatment and, at the samc time, unlawful actions by the
Agencies and their staff.
The policy docs not cover the circumslances in which the Agencies
arc directly involved in the qucstioning Of,11"1 individu<ll ill the custody of
,1 liaison service, (e)l'l,vhich there is sep<trnte guidance.
Key Pnints
~

'fhe Agencies need to develop and maintain close working, linb
with a wide and growing nmgc of liaison services few the proper
discharge of their functions. This involves passing, seeking and
receiving inJ(wmatioll.

e

The Agencies do not participate ill, solicit, encourage or condone
the usc of torture or inhuman or degrading treatment. The
Agencies will not carry out any action which it is known will result
in torture 01' inhuman or degrading treatmcnt.

ll>

&

Where the Agencies foresee a real possibility that their <lctions will
result ill an individual's mistreatment, they will consider applying
caveats or seeking prior assurances before acting in order to
clil11inc:lte or minimise the risk of mistreatment.
Where, nOlwithstClnding any caveats or prior assurances, there is
still considered to be a real possibility of mistreatment and
therefore there is considered [0 be a risk that the Agcncies' actions
could be judged to be unlawful, the actions may not be taken

2

85

be judged to have 'dcted unlawfully.
Polic)'

8.
The Security and Intelligence Agencies do not participate in,
solicit, encourage or condone the lise or tort lire or inhuman or dcgrnding
treatmenL For reasons both ethical and legnl, their policy is not to carry
oul any action which they know lVould result in torture or inhumaJ1 or
degrading treatment. Where there is considered to be a risk that the
Agencies' actions will be unlawful, the actions may not be taken without
authority <It n scnior level. In some cases, Ministers may need to be
COllSlllted.

Law

9.
'fhc Security and Intelligence Acts require that, before passing
inrOrm<llion 10, or seeking or receiving information from a liaison service,
(he officer dealing with the case mllst be satisfied that his actions are
necessary for the proper discharge of the particular Agencies' functions.
All of the relevant circumstances need to be considered. These will
include the potcntial or anticipated benents n'om passing, seeking or
receiving the particular information, as well as any potential negative
consequences. Il'thc possibility exists that inf-ormation will be or has been
obtained through the mistreatment of detainees, the negative
consequences nHlY includc any potentia! adverse effects on national
security if the nlct of the Agency see~ing or accepting information in
those circumstances were to be publicly revealed. For instance, it is
possible that ill some circutllstnnccs slIch a revelation could result in
further rndicalisation, leading to an increase in the threat froJll terrorislll,
01' could result in damage to the reputatioll of the Agencies, lending to <:1
reduction in the Agencies' ability to discharge their fllllctions effectively.
Where there i~; the potentinl for such negative consequences to outweigh
the bellents, advice should be taken 8S appropriate.
10.

Even if the proposed actions satisfy the tcst under the Security and

J lltclligcnce

Acts, there arc a number of ways in which they might:

0)

be unlawful under UK criminal law;

Oi)

be unlawful under UK civil law; or

(iii) put the UK in breach "I'international law,

3

86

11.
Officers or the Agencies wil! COJllll1il (J criminal offence where
their actions aid, abcl 01' incite the commission
(l criminal offence
under UK Jaw by a liaison service overseas. The offence committed could
be:

or

(a)

torture;

(b)

,1 breach of the Geneva Conventions Act 1957 (torture or
inhuJ11(1n trc<ltIl1C!H of a detainee entitled to the protection of
the scheduled conventions or the first protocol) and of the
International Criminal Court Act 2001; or

(c)

misfeasance in public office.

(oJ

Tor/II!'I'

12.

Section 134 oCtile Crimimll Justice Act 1988 reads as follows:
public official or person acting in an ofticial cnpacity, wlwtevcr
his nationality, commits the offence of torture if in the UK or
clsewh(~re he intentionally inflicts severe pain or surn:ring on
another in the performance or purported performance or his
ofllcial duties."

"(1

It is imnHlterinl whether the pain or surrcring is physical (,)1' mental ,mel
whether it is C,lllscd by an act or ,111 omission: subsection (3).

13.
It is all oflcnec lor an ol'Jiccr [0 incite the offence or torture
committed by a foreign liaison service. An officer will be guilty or
incitement where he intends to incite torture by his actions or, possibly,
where he knows or believes that torture will result from his actions. For
this purpose, deliberately closing. onc's eyes 10 the consequences oronc's
actions is deemed to be the same as knowing those consequences.
14.
It is an offence for an on-ICCI' to aid or abet the offencc of torture
committed by a foreign liaison service. An officer will be liable f()r
aiding and abetting tortUl'e if he intends to and wilfully docs 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 liHison service or provide actual assistance to that liaison
service, e.g. by providing • . In those circumstances, an officer who
engages in a joint operation or provide:; assistance, without having
attached an appropriate caveat or secured the necessary assurances (see
further pnragraphs 35 to 37 below), may aid or abet torture if he knows or
believes thnt the liaison service will commit torture and his conduct is
cnpable of assisting that torture and torture docs in fact result.

4

87

15.
In the context of these offences, the humall rights record or IIII.'
state and liaison service ill question \vill or course be a relevant hlClol',
although there is a differcllce between what is known 8nd what is l"lllllOUr
and unproven reporting.
(1))

Breach o/the Oenevo CO/lvcmiot/s ;Jet 1957 and the

III/COWI/o/1o/

Criminal COliI'I Ac.'/ 200}

16.

Under section I of the Geneva Conventions Act 1957:
"Any [Jcrson, whatever his nationality, who, whether in or outside
the United Kingdom, commits, or aids, abets or procures the

commission by any other person of, <l grave breach of any or the
schedulE'.d convelltions or the first protocol shall be guilty or an
nJTcncc".
17. The scheduled conventions me the 1949 Geneva Conventions!!o
IV and the Ii rst protocol refers to the 1 977 Geneva Protocol I. These
apply to prisonCl's of war, civilians in detention nnd certain other
cntegories of person. For the purposes of this offence, the status o!" the
detainee will therefore be critical. However, the offence will only apply
in situiltions arising out of armed conniet.
! 8.
Any lor[ure or inhuman (bUI 110t degrading) treatment or a detainee
entitled 10 the protection of the scheduled conventions 01' the Hrst
protocol \vil! amoLint to a "grave breach" under the Act and therefore a
rriminnl oreence. An omcer lllay aid, abel or inCite the offence in the
same way as described in paragrnphs 13 and 14 above.

19. it \yill also be tin ofTenec under the International Criminal Courl
Act 2001 to ,lid, abet or incite a person to commit a "war crime". War
crimes include grave breaches or the Gencvn Conventions.
(c)

A4i.\/(~a\'{/nce

in puhlic ojjlcC!

20.
One other offence could also be committed. The common law
offence of misfeasance in public on-icc can be committed where a public
orticial wilfully neglects to perform a duty which he is bound to perform
by CO[lllllOn law or statute. It is conceivable that this offence could be
used to prosecute public oHicials who have sanctioned torture in some
\V<I)'. Ho\Ve\'er~ the offence is unlikely lo cover situations not caught by
the above offences and so docs not need to be considered further for the
purposes of this paper.

(0)

Sectioll 6 (~lthe Human Rights Act

5

88

~ 1.
Under section 6 orthe HUJ1lan Rights Act 1998 it is unlawful 1'01" a
public authority to commit torture, or io inflict inhuman and degrading
treatment, as this would be incompatible with a convention right: Article
J of the European Convention on HUIlWI1 Rights ("the r~CHR"), the
prohibition or torture. However, for the Act to apply in relation to

detainees held overseas, the UK would need to be ill "effective conlro]"

of the nrC,l in which the detainee \vas located, as the primary jurisdiction
of the Act is territorial. The Act is therefore unlikely to apply in the
situations covered by this policy.
(lgain.~·(

(h)

Tl'espass

the perso/l ul1djt.l!se imprisol1/11el/l

J')

Mistrcc1tlHenl and torture could also ,1I11ounl 10 the tort or trespass

against the person or possibly HdsC" imprisonment. In theory, ,1 victilll of
such mistreatment could bring <111 action for damages against either the
Agency or their of!1cers, where an oniccr )l1ld instigated" foreign liaison
service to carry out an act which c,lUscd the torture or mistreatmcnt or illl
individual and those consequences were reasonably fon~secablc. A civil
<letioll could also be brought In similar circumstances on the basis or
misfeasance in public orncc. The reilledy for such actions would be
damages.

23.
The UK is a signatory to tile United Nations Convention agninst
Torture C'UNCA'T") (as well ns related provisions on torture in the
I:('H}\ Hnd the International Covcnant on Civil and Politicc1J Rights
("ICCPR")). Article 2 of UNCAl prohib'l!s torture. Article I deflllC's
torture as:
"any net by which severe paill or suffering, whether physicll! or
mental, is intentionally inllicted on a person for such purposes as
obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidati,ng or coercing him or
a third person, or for any reason based on discrimination of any
kind, when such pain or suiTcring is inflicted by or at the
instigfllion of or with the consent of a public officioll or other
person acting in all official capacity."
24.
UNCAT requires States to tuke elTcetivc measures to prevent acls
of torture \vithin its jurisdiction. UNCAl's requirements arc 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
offence, those actions could also lead to a finding that the UK was in
breach of UNCAl'.

6

89

25.

Both the ECHR and the ICCPR also contain prohibitions against

torture and inhuman and degrading treatment. However, as these only

apply where ;l detainee is subject to the UK's jurisdiction, they [lrc
unlikely to apply in the situations covered by this policy.
26.
Th\.;' UK might be liable under international law where lhe actions
of members oflllc agencies provide aid or '15sistancc to another Slate wi!h
[j vic\v to facilitating the cOlllmission or all internationally wrongful ilCI
(sec Draft Article 16 of the Articles on State Responsibility adopted by
the lnlcrilatiollaJ Law Commission). However, til'ls would only apply
where the members

or

the agencies ael, knO\ving

or

the proposed

intcrnationaJJy wrongful act and with a view to Hlcilitating iI, and their
aid or assistance [lctually l~lcil'll<ltes the wrongful act. While the legal
position is !lot clear, where information is received under "l!l ongoing.
liaison arrangement hom a coulltry known to usc torture systematically,
there could also be a risk that the UK would have failed to cGmply with
its duty under customary intcrJ13tional lnw (as reflected in dral! 8rliclc 41
or the lLC's draft articles on State responsibility) to cooperate to bring an
end to the usc of torture in such <l State. However, the risk of a brc"lch
would be significantly reduced where positive stcps arc taken to try to
prevcnt torture by obtaining credible assurances. There would be no
breach of this duty where, [or CXi.\!llple, sporadic lise or torture might be
suspected.
1~(Jles Hlld

n:sponsihilitics

27.
AI! relevant agency stall' should cnsure that they HrC !lulliliar with
the guidance in thi.<; paper, together with any related advice circulated by
the Agency. Nominated staff will be responsible f(lr deciding whether to
proceed in cases where there is considered to be a risk of mistreatment
and they will also be required to form judgments about the adequacy or
caveats and assurances. In cases of particular difi1culty or sensitivity, or
where there is considered to be (] risk of mistreatment notwithstanding
any caveats or assurances) the decision should be referred to nominated
senior staff
28.
The Legal Advisers in both Agencies will be able to advise 011 any
legal issues that arise in particular cases. These will include whether what
is known about a particular state or liaison service, 01' what is known in 11
particular case, means that there is foresight of a real possibility of
mistreatment. The LAs will also be able to advise whether anticipated
consequences amount to torture or mistreatment. (For instance
mistreatment can include treatment other than physical injury. It can
include mental cruelty and could potentially arise from indefinite and
unlawful detention.) ,Advice can also be given on the status of a detainee
and whether he is entitled to the pl'ptcction of ,the Genova Conventions.

7

90

"rhey will also be able 10 advise
a~surnnccs thm have been received.

011

the

<ldcqu<lc)'

of any caveats or

Proccd lire

29.

Different considerations will apply depending on whether the

Agencies:

(I)

<l liai~oll service, which may result in an
individual's detention or be used in the questioning or all
individual in detention, 01' when seeking information l}om <l
liaison service, which 111(1)' he obta'llwd from an individu<l! in

pass information to

detention; or

(2)

10.

receive information jj'om a liaison service, which Jllay have
heen obtained from ,11i individual in detention.

The officer must consider whether his actions might result in the

torture or ll1islrcMmcnt or all individual. I-Ie needs to identify \vhich ol'thc

rolJowillg is the c,lse:
(a)

he knows that his ,lctions will

nol

result in to rlll rl; or

III iSI ['eMIl1 ell t QL!lQ...QQ£.~_JlQLJi~[~~~&~ _'u:.~_nLl~Q~_0.i.b,d!ty. t1WI
such consequences will result;

(b)

while he does not know, he foresees f_~ .1~t;.HL'pg~_::>jJJ..iJjlY IIHlt
the consequences or his actions will include torture or
mistreatment; or

(c)

he !ill.Qws \yhal thG...fgns~llLcJ1~.~..9LJlis l\CliollS",.~yjJLb..9....H11{!
those conseHuencesjJ.lcJud~JQLtUJe or mi~trcatn~m.

He knows that his actions IFill not result in torture or mistreatll1ent
he does not foresee a real possibility Ihat such comeqlfences will
result

(a)
OJ'

31.
In accordance with standard practice, before passing any
information to a liaison service, an olliccr should always atlach the
standard 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 officer does not foresee a real possibility that the
consequences of his actions will include torture or mistreatment, or where

8

91

he knows tlwt such consequences will not result from his actions, no
further cavellls are necessary. To proceed wil! be lawful.

33.

The criticnl question is whnt steps should the officer take to infol'm
himself before deciding whether he foresees a real possibility. Whilst

there is no legal oblig::Hion 011 sullY to seck out potclltinlly relevant
information, the officer should ensure that he is rcasonnbly well informed
oflhc practices of particular stales and liaison services.
(h)

While he does no! know, he foresees a rca! possibility tho I the
wi!! include lo/'/ure ol"/IIislrcolmenl

cOt/sequences

34.

If the ornecr foresees n felll possibility that his actions will result
in torture or mistrcatmclll, he 1}}1!_~LrqJ(;,LJJl~ __ llliHJr;.!' JQ ll1.0- §~Jl!Q[ Ling

nH~ggg~mgD.l.l~9Ji~,!:~..J~r9_~.9.~ii))gJJJ.r!h~J·

35, Line management may conclude thaI there is no! a rca! possibility
l!l,lt 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 further caVC(l! to the information or request, in
flddition to the standard liaison caveat set out above. A further caveat
could be to the effect that, as appropriate:

36.

(I)

the inl<mnalion should 110t be lIscd as the basis for cxccutivl:
'lction;

(ii)

the inforlllation should not be Llsed as the bas'ls
question ing ,lilY i nel i vidual;

(iii)

if the information is to be uscclas thc basis [()I' qucstioning
any individual, such questioning should conf()J"!l1 with
international legal stHl1dards;

(iv)

the information sought should not be obtained
individual in detention; or

(v)

if the :information may be obtained from any individual in
detention, the questioning of him should conform with
internatiolwl legal stHndal'ds.

hOIll

1'01'

any

1-1 owcvcr, !~. caveHLi1>_,"QD]y.. .QLy.g1!JgjLJll~._9 ffic~rJ~gHQ.Yg~Jh.<tLH

.w].! be observed. so that it

elimiIH1H~-,,~.1l1.Q.L!$J~Jllat an.mfli.Yidua!.JlJjg!l! be
l
m!.g:r_eate~L.g.~JU'esul.L9Jl!j~<; acti9Jl§.

37.
If it is not thought that caveats alone will suffice, Ilwnagcment
should consider seeking specific assurances n'om the liaison service in
question to prevent any mistreatment occurring. Any assurance-s must be

9

92

rcJial)Jc {I11d credible: ill.! ~_~_?m!:l})l:_~ ~yb.i~lL~Y.UL!Jf~_Lbc qbsQD'£_Q...!L.QJJ.li2
However, once such apparently reliable assurances have been
received, the intended action may be authorised und may proceed. It will
be lawful.

~~illliQ.

II' it is not considered possible to obtain reliable assurances, or if
38.
there is any doubt about the reliability of' assurances received, the matter
should be referred to senior management before proceeding further.
Senior n1nllagCl11Cnt, having taken advice /l'om the LAs as tlley judge
nCCCSSfll} in the particular circumstances, will decide whether to
authorise the proposed action. They will balance the risk of mistreatment
and the risk lhal the officer's actions could be judged to be unlawful
against the nced for thc proposed action. All of the re!cvnnt circumstances
will be taken into account. These wiJJ include the operational imperative
for the proposed action, such as if the action involves passing or
obtaining life··snving intelligence, the level of mistreatment anticipated
alld how likely those consequences arc to hnppcn. III particularly difficult
eilses, senior Il1tlllagernent may need to refer the matter upwards, and in
some case::; it lllay be necessary to consult Ministers. This process is
designed to ensure that <lppropriatc visibility and consideration or (he risk
of un law 11. II actions takes place.
(c)
lIe knows whO! the COn-I·(H/llenee" will he and those
include torture 01' mis/reo/men/

CO!1.w:qllences

19.
The procedure is initially the sallle as for (b) above, with the
matter being referred upwards as required. l-lowever if, even with the lise
or caveals imel/or assur<lnces, il is known that the consequences \vilJ
include torture or mistrcatment then the <-lClion will not be allowed to
pJ·oc ced . ·1'11 ~~_.l~gQll91~.~_ ..\vilLnQ1.JHJJ!.lQIj.i~.J!'l}Y-'.!f!!Q_'L~ylli~lL1L.lli !~D9.wn

!~j.LlXgs LI JLiJ.lJll~J]}15JI~_m.!!l911LQr_1!!,l_._\n~t!xl.Q.L!nL

40.
It is unlikely that any single instance of acceptance by an ollieer of
information from a liaison service will amount to a criminal oflcnce or a
breach of civil or intertl3tionallaw.

4 J.
However, it is possible trwt receiving information f)'om H liaison
service, via corrc,spondcnce or liaison meetings, could incitc that liaison
service to mistreat detainees in ordcr to maintain or develop the liaison
relationship. For example, a liaison service knowing tl18t the Agency was
intcrested in obtaining ftmher information tl'Olll a detainee might
incorrectly conclude tlwt the Agency would want them to obtain it, if
necessary, through torture or mistreatment.

10

93

li;:1ison .service uses torture or .ot.b~l: mistrcapncnt to obtain information,
!E;~=Agi!10-sT10uI~Lcm)~T(T~~2GillD.wg~lss·~.!.l'ance~--r;cfor~..fQ!1!~~~~lngJ.~2
!:Q.9Qi~!L.?llCh !!If<)rlnation. If it is not considered possible to obtain reliable
assurances, or if there is any doubt about the reliability of 8ssunmces
received, senior management, taking advice from the LAs as required,
must decide whether to continue 10 receive such information. As above,
<til of the relevant circumstances will be taken into accoLinl. 111
pm'(icu!arly difficult cases, senior manag.ement Illay need to refer the
matter upwards, and in some cases it may be necessary !ll consult
Ministers. This process is designed to ensure that appropriate visibility
and consideration of'thc risk ofuillawful actions takes place.
43.
In any case where a credible a1!egat'lon or other informMion is
received llUlt torture or other mistreatment has been used on tl detainee,
tllis should be drawn to the attention of relevant managers. Where tlwl
detainee has provided informatioll to the Agency, it will also alert other
relevant Dcp;:trtments, Agencies and Ministers. The paJ1iclliar Agency
will nlso consider whether to raise the allcg<.llions with their own contacts
within the particular liaison service. Ifsuch an allegation or information
is received in a case where assunmces have been obtained, this would
also have implications Cor the credibility oj' any future assurances from
that li<lison service.

44.
The circulllstanccs in which detainee information !las becl)
obtained will be rclev,-lilt ill assc:>slng its reliability. Accordingly, the
I\!~l'ncy should wherever possible seck ,IS much context as possible,
PilrticuJarly if the intelligence is thrcaH·c!nted. However, the Agencies'
nbility (0 do this is of1cn limited <Ind, 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 intell igence I'rol11 the I iaison service in question.

45.
it is established as a matter of law that information may be used as
the basis for operational action, \vhatcvcr the circumstances in which it
has been obtained. However, where it is established tllHt information has
been obtained by torture, it is not possible to rely on that information in
legal proceedings, for instance to justify the Agency's operational actions
or to support the taking of steps against an individual, such as deportation
or exclusion. LAs arc able to advise on the possible application of this
evidential bar in particular cases.
28 Jllly 200(,

11

94

End Of Document

12

Flowchart

Refer to senior
i

management,
j
jW'no v,.;i!) refer upwards I,

'I

!Referto line manager,

I

'ho wW refer upwards

i

"

WiII:proposedaction
resultjn :the :tortureor
othe't:mistreafrrte"nt

as appropriate.

I

'

",he, ceoartmen.s

.

i.

i

__ j

i

need
to be invoive d
in the decision

as a~propriate.
• IS. It agreed
,ha. we know?

I

Y::;S

,

I

j Co~sider w~eth er!
i
~! ~~Pn;a,te Ofilce,.. ~

. '
! '!"~'
or I~iln]sters

"

I
YES, T¢~OU~
KNoWl.tDGt::

I

Does line manaaer

agree that ther; is

POSSJ81LlTY

ofanintfividual?

\

a rea! possibility?

NO

\

Can specific
assurances
be obtained

fro rn the
1:';8'1'1
n,v"

service?

1m
rr
I

'

I

,

i
i

NO

IjRefer to line manager.
REAL

i

i
I

is line manager
','"s

,

)'1

content that an
addition aJ cave at
wU! he suff:cierrt?

Y::;$

I

Can specific
NO

assurances be
NO
obtaine d from the f.---!--~.
liaison s:.ervr,ce?

Y=:S

I

.-J

~

w

'-D

v;