Britain's security and intelligence services face legal action over misleading guidance issued to agents involved in the detention and interrogation of suspects who are at the risk of torture. The Equality and Human Rights Commission has written to David Cameron and the heads of MI5 and MI6 expressing "serious concerns" about the lawfulness of the guidance which it says leaves agents exposed to claims of complicity in torture.
New guidance was published after British citizens and residents held at Guantanamo Bay in Cuba alleged that MI5 and MI6 had been involved in their illegal detention and torture. In the most damaging case Binyam Mohamed, an Ethiopian refugee living in the UK, has given evidence to the High Court in London alleging that MI5 fed information to the CIA although senior officers knew that he was being tortured by a third party state.
The Commission says it will take legal action against the Government if the guidance is not changed to ensure that agents do not do anything to aid or abet a third party state where a suspect is at risk of torture.
Lawyers argue that the guidance does not do enough to protect officers in the field because it may leave them with the “erroneous expectation” that they will be protected from personal criminal liability in situations where they may, unwittingly, be liable for crimes committed and condoned by others. Three officers form MI5 and MI6 are already under investigation by the Metropolitan Police Force over allegations of complicity in toture.
According to the Commission the guidance suggests that an officer can work with a third party state provided the risks can be mitigated through “caveats or assurances” or if ministers have been consulted.
John Wadham, group director of the legal department, said: “The government has recognised that it needs to break with the past and begin a new era; one in which intelligence gathering is not contaminated by torture.” He added: “One positive effect of this new transparency is that the Commission has been able to consider the guidance and advise on its legality. The government now has the opportunity to bring its guidance within the law so that the intelligence service itself and its individual officers do not unwittingly leave themselves open to costly and time consuming court action.”
A spokesman for the Cabinet Office said the the guidance was lawful and that the Government did not condone torture and cruel, inhuman and degrading treatment or punishment. “We and in particular our personnel on the ground, work very hard to reduce the risks of detainees being subjected to mistreatment when they are held by other countries.”
He added: “We have established a clear framework for them to operate legally, proportionately and with respect for human rights. The guidance is consistent with domestic and international law. The guidance was drawn up with the cooperation and support of the security services and provides a framework for dealing with a range of circumstances in which personnel might have involvement with a detainee. It is clear about when not to proceed and how to escalate unclear situations to senior staff and ministers.”