Freedom from Torture, Inhuman or Degrading Treatment
The basic human right not to be subjected to torture or to inhuman or degrading treatment or punishment is contained in Article 3 of the European Convention on Human Rights (ECHR). Article 3 of the ECHR was enshrined in UK law by the Human Rights Act 1998 which came into force in October 2000.
Under the provisions of the Human Rights Act the UK government has a duty to ensure that no one is subjected to torture or to inhuman or degrading treatment.
Many of the rights contained in the ECHR, and the Human Rights Act, are limited or qualified. This means that there are certain circumstances in which other factors may override an individual’s human rights. However, the right to be free from torture is deemed to be so fundamental to a civilised society that it is an absolute right which cannot be overridden by any other consideration or in any circumstances.
The Definition of Torture
Torture is deliberate ill-treatment of a human being which leads to very serious suffering. Torture may be mental or physical or a combination of the two. Definitions often exclude any suffering caused by the execution of a lawful punishment or sanction. Of course, any punishment which in itself amounted to torture is unlikely to be lawful.Treatment need not be in an organised form or include particular techniques to amount to torture. For example, if police were to beat up a prisoner in custody this could constitute torture.
The Definition of Inhuman or Degrading Treatment
Inhuman treatment may be similar to, but less severe than, torture and it may also be physical or mental in nature. It could relate to a physical attack on an individual or the conditions in which they are held. It may also include the immediate threat of torture.Degrading treatment or punishment has a broader definition than inhuman treatment, and what is degrading may depend on the particular attributes of the person in question. For treatment to be deemed degrading other people sharing the same characteristics as that individual would have to find it degrading.
It has been decided by the courts that extreme racial discrimination could amount to degrading treatment for the purposes of human rights law. By extension other forms of discrimination might, therefore, also constitute degrading treatment.
Torture and Evidence
Much has been written on the subject of torture, particularly in relation to the questioning of terrorist subjects. Some commentators believe that torture can be morally justified in certain circumstances. An example is often given of a situation where a terrorist suspect may be withholding information about an imminent attack. If torturing that individual into revealing this information could save hundreds or even thousands of innocent lives might it be morally justifiable? The emotional, knee-jerk response to this question could be, ‘Yes’. However, the likelihood of this scenario is highly questionable.In practice, the real (and less emotive) question about torture usually concerns the evidential value of information elicited by such means. Any evidence gained in this way could not be used in a UK court - not least of all because the evidence itself may well be unreliable. Indeed, the attempted use of such evidence could render a trial unsafe and lead to the acquittal of an individual who is in fact guilty.
The Application of the Right to Freedom From Torture
The courts apply a very strict test when considering whether there has been a breach of an individual’s right to freedom from torture or inhuman or degrading treatment. Only the very worst examples are likely to satisfy that test. However, possible circumstances in which such a claim might apply include:- The treatment received by those held in prisons or other forms of custody – including asylum detention centres;
- Treatment received by patients in hospital;
- The failure by public authorities to prevent a child becoming the victim of abuse;
- The deportation of a foreign citizen to a country where he may then be subjected to torture or to inhuman or degrading treatment or punishment;
- The sentence imposed by a court following a conviction.
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