AGENCY POLICY ON LIAISON WITHE ‘OVERSAS SECURITY AND INTELLIGENCE SERVICES IN RELATION TO DETAINDES WHO MAY BE SUBTECT YO MISTREATMENT Overview 1. ‘The Security ond Intelligence Agencies ("he Agencies”) donot pr solicit, noourage or eondone th ube of torurs or inhuman or degrding teatment refered to inthis paper generally 8 mistesbment), They wi thovefte not cary i any nti which it 8 known will result in torte or inhuman oF doraeing least, Atte game tims te Agosies nese to work wid u ange of everest ris and intelligence services ("ason serves") fer the proper discharge of thelr futons. ‘This pliey sets oat the legs issues an delng with ston services where The Agencies stlons might esl in an incvdaals mister! in deention a tho hands of Hatem servee. Ti ayggan practice ways to eliminate or mise, so fr ts posible, the sia of euch etoatmint and, atte ene ime, unawilectins by the Agencies and thai sta 2 The pilley does not cover the cirsumstnces in which the Agencies are iucely imvclved in the questioning ofan incvidul in the custody of 8 icon Sovice, fer whi ther ie aoprte gules, ey Pols + ‘The Agenciae need to develop and msinan close working links with x wide ani owing eange of lsiton services fr the proper discharge of thir functions. This invoives passing, seeking end receiving information, +The Agencies do not participate in, seit, encourage or condone the use of tortare or inhuman of dogéing weaunent. The Agencies will uot camry oxt any acon which I 8 known wll result io tortre or naman or degrading + Where the Agunsies foreseen possiblity that their setions wi esl in individual's mietostnen, they will sonedor applying caveats or seeking prior asurnoee before tong in order (0 elite or minimise the sk of + Wher, notwithstanding any cvets or prior assurances, there is till considered to be a seal possi of mistreatment and therefore there it Considered {9 be a risk thatthe Agenie' ttiont coud be judged to be ‘nlewl, the acsone may aot be aken without suber a cir level In some coe, Mnistere may need tobe consled, Sewers: Contest PS3. Under both the Senuty Seves Act 1989 and the Laelgance Service Met 1994 Cune Security and Intelligence Ass, it ete duty ofthe Dives General and ‘ho Chief of SIS respectively co ensure het here re srangemens fo scuring that 20 information is obtained or cisclowod by the Agenies exept so fr asf necessary for th prope discharge of ther separate feo, 4 ‘The Agence’ Sonetions sre set out in section 1 ofboth af the Seavnity and Inteligenee Aes, The functions include the protection of national secu, ia parcaar agains heats from trerisn 5, Thesnoat subtler thes oumenly Faved by de UK comes fom A Quide and fom groups afiliated 1 or insprad by it This threat is uniquely ‘rananations snd equies an ntertiocel response. Is emergence particule since Seplember 2001 hs led to increased co-operation between goverment, oelsing on seeiy/nteliganse ebtaass. The meed fer enhanced sntemstional cooperation (2 combat Oe teat fom Al Quide and is afflises was recognised and hae bees tinpbasieed since Seplemer 2001S, for exarpl, UN Secarity Counel Reselation iW 6, In diese circumstances, the Agencies need, for the proper dischage of tes ‘eprte fnsion, in particular he protection of national scart aginst threts fom Tereism, to dave end mania clos wotkng links wih» wide and growing anes flaiaoa services, This involves passing seskng an receiving information. 1. However the cbservauce of umm sights andar by lisigon sevieos so stses varie, The UK is fequze, in paula unde te Unite Nations Convention fgnet Torte and customary ntsratonl la as reflected inthe daft ates ofthe Intemational Law Commission (th TLC" on State Respansibiiy, to preven act of tornre iin ity jradievon and to ceopert 19 britg ten end ace of rerure fsnousting to seious breaches of the ILC by other sat, The Agencies ue ‘oromted tp easing so fir ax possible the observance of human rights by Vision Services and work ‘ith Usison servoee to achieve this. In sddilon, psssing information fo end seeing an rezelving infomation fo lsson services, here his Ibight soe er result in an individual's mistreatment, an in eaten clronmetacces Cenitavene UX law. For all thote resco, it ie clearly wit that tbe Agence’ Feltonahipe wit eson services are conduc in eway tat eliminates or minimises (hs iakofmisventment and therefore that an oficer of eter Agency con be judged to have stad wnlawfilly Poliey 8, The Secuity and’ Intelligence Agencion donot partisipae in, solic, ‘eoourage or condone the we of torre of fabuman or depading treatment, For reasons both ele! and legal, ther poley fa mot to cany out muy acon which they iow would ceclt fo torte of Sakoman or degrading teatmect. Where tere i considered tobe a snk thatthe Agencies’ actions will be unlewfl, the ations mayel be ken without authority at senor lve. n 6 De oonaled 508, Ministers may need to 9. The Security end fnsligence Acts reuie that, before pasting infomtin 1, for seking orresiving information fom # linea service the ofiesr dealing mith panicuar Agencies funcions. All of the relevant ircumstan Considered. These will include the potemtal or anticipated benefits fom pasting, sscking or eesving the parcolarlofomaion, et well as ey potential nega onsaqusnees If the possibility exist that infomation wil be or has been obtsnad Shraugh the misveslment of deianea, the negative eansquences may inl potential adverse effects on national soearty ifthe Tat of the Agency secking oF fcceptng information in those circumstances were w be publily reveded. For lastane, it is possible that in some crcomstances such « revelation eould resin father reicalisation, lading (an inrease in th treat fom femorsm, or could emt damage to the reputation of the Agencies, leading 10 a reéuction io the [Agence ably to discharge thei fasion effetvely, Where there isthe potenti fa uch negative consequences to outweigh te benefits, advies should be taken es popes, 10. Bven if the proposed aeons ssily the test under the Seeuiiy and lottigence ats; there are a umber of ways in which they might (@)—betnlwfl under UE exminl tw; 6) benlawfil under UK iv ews ot (G8) pot the UK in breach ontermationa! lew © Sein iwe 11, OMe ofthe Agencies will commit» eximinl offence where their aeons 1d, abet or incite the sommission fa ezine afenee under UK law by 9 fson ‘serve oversea, Te offencscominitod eould be: @ tone (©) breach ofthe Genova Conventions Aet 1957 (torture or iahunan treatment of e desis ented fo the protection of the scheduled ‘conventions or the Gat protoeol) and of the Intentions) Crimi! (Court Act 2001; oF (2) misfeasance in public offs, ip es. *8() Tortwe 12 Section 134 ofthe Criminal Justin Act 1988 88d as follows “a public oficial or person acting in en oficial capacity, whatever is rationality, eommits the offeace of torre if in the UK or elsewhere he intentions ints svece pain a fering on another inthe pvformmnae purported perfonnanee ofhis offi even” [ee immateil whether the pain or sufeing i physisl or meatal and whether ite ‘sme By on act a an omission ubsewion 3). 13, itis an offence for sn ofier lo incite he offence of ortace commited by # oven isson sevice An ofier willbe uly of oetement where be nando incite tree by his acon a, possibly, where he knew ot believes tha ots wi result Grom his aetons. For tis purpose, deiberetely closing one's eyes to The consaquences of one's astions is doomed to be the same as knowing those consequences 14. eis an offence for un offic to ld or abet the offence of torture commited bys Foreign linison eave, An ofier wil be abe fer aiding end wboting tru if he intends fo ad willy doo encourage it ad true Is cased by his actions. The tence of siding and abetting torture might lia be commited whore the Agencia {ngage in joint operation wit lisisan servis a provide actual anise otha liaison sevies, ag. by proviing Tn Das etrunstances, a officer who fngnges in joint operstion or prowse esiatancs, with having stached an sppropris covet or secured the deceseryssuranet (Ges fuer parngraphs 35 37 below) gy aid o abet torture if ba known a belive that he lniton serie il comin titre and his conducts eapabe of asssng that torture and torture dows fet eval 5. In the context of these offence, th human rights record of the stat ex inison service in qbestion will of couse be a relevant Sector, aovgh Ur ist difference benveen what i nov and bat emer and unproven epeting ®) Breach ofthe Geneva Conventions At 1957 and the International Criminal Court Act 2091, 16, Under vetion 1 ofthe Ooneva Conventions Act 1957 “Any prion, whatever is nations, who, whether io or oxide the United Kingdom, commit, oF ads, abets or procures the commission by aay olier person of, «grave beach of any of th scheduled conventions or the ft protocol el be gully of en offence” 17, Tho schedule conventions are the 1949 Geneve Conventions Io TV and he frst potecal refers tthe 197 Geneva Protool 1. Thes eppy to prisoners of was, Pocivilian in deteation and oxrtan othe etegares of person, For the purposes of his offence, the status ofthe detsince wil therefor be eal. However, the offence wil ‘only apply in sttonsaiing out of armed conflict, 18 Any torture or iboman (bt not degrading) treatment of «desis ened to the protection of the achednled conventions or the fist protocel will amount 10 “gave bron wader fae Aut sad terete teiminalofenee. An offieee may set or incite the offence io the same way a dezeriveein paragraph [3 and 4 hove 9. I: wil alo bean offence ander the Ltenatione Criminal Court Ac 2001 to 2d, abet or incite » person to commit a “war erime”. War etmesinciode grave bronhes ofthe Geneve Conventions (e)— Mifreronce i pubic office 20. One other offence could sso be committed. The common law offer misfeasmes in public ofice can be sommited where « public official wil hoglects te perform a duty whieh he is bound to perfann by common losis It is conceivable tht this offence could be used ta prsneate public oils who sanctioned tort in.some vay. However, the offence is unlicly to cover situations not caught by the bave offences aud oy does no ned o be conldered rte or he pnposes ofthis paper of 4) Civ aw (2) Seosion 6 af the man Rights Act 21, Under secon 6 ofthe Homan Rights Aet 1998 it i uniawtst form poli futbority to commit torture, orto inflit iabusan and depding teainent, a this ‘would be incompatible with «convention right ticle 3 ofthe European Convention fon Human Rights ("he ECHR"), the potion of tora. Homave, for he Az apply in relation t detainees held overseas, the UK would ned ta be in “efetve contol” ofthe aes im whion the detainee wes loesed, a the primry uriedieion of ‘he Act ie tenitril The Act ls therefore uallkaly to epply in the sation coved by this policy (©) Trespass against the percon an ele 22, Mistestment and torture could lao mount to the tort of espa agin! the person cr possibly false imprisonment nteary, vie of such mistreatment coud bring an ection fr demeges ogainat ster the Agency or their offices, where en ler had instigated a foreign lisian service to cary out an act which cased the tome or mistreatment of wa individual and those consequences were reasonably feresoeable. A civil action could leo be brought in smile ezeomstances a the ase of misfetance in public office, The remedy fr sock notions would be damages, emmy eee (6) ltemationa aw Pioaay ‘The UK is signatory to he United Nations Convention aguinst Tovtne CUNCAT") (as well 29 rolated provisions on torre io the ECHR and the {ovematons! Covenant on Civil and Poca! Rights CICCPRC)) Aree 2 ne UNCAT prohibits torture, Arie t defines trae aa ‘ny 201 by which severe pain or aufeving, whcthey psi Jntetionally inflicted ons person ir suc porposs a btaning hom ni os & third person information ora eanfesion, punishing hm far to se ho third person has commited of i aispocted of having somal inimidating of coreing him ora third person, er for any reson based op Glserimination of any kind, when sich pain or suffering sini by or oe the instignon for wit the content ofa public offi rote pon Song Inga oficial empacity.” 24, | UNCAT reqies States to tke effetive measures to prevent sc of torre thio it urine,” UNCAT's requirements ae met by the UK treo he ation ofthe onminal offence of torture ex above) Howevet, whore he sever members ofthe Agancios anoint to thie aff, those actions could uae ood oe finding ha tbe UK was fn besch of UNCAT 25, "Both the ECHR and the ICCPR also canisn protons against tortare and ‘nbumnn and degrading treatment, However, as thes only apply wraren doconee ‘bjt othe UK's juristesn, they cay t app in he sivatons ores by this potcy 26, The UK might be lable under ngematona nw where he sstione of members of the agecies provide id er atanos to mothe uta with a view wo fecng he commission ofan interatonly wrengtl st (se Brat Artele Is ofthe ail, on Sate Responsiihty adopted by the Ineaaion] Law Commission), Hoverc, ‘he would enly epply where the members of the agencies ack knowing of te repose iterationally wrongfl ac and with a viow to ltating mod hate or assstence actually flats the wrongh ue. Wiale the lop Revlon i ae cles, where information is recived under en ongoing Iaison seangonet fom aunty lmown to use torture systematically, thar could eae be sree tet the Uh, would have filed to comply with its duty under customary intentional lev (o reflected in dra aicle 41 ofthe IC's dat astcin on State respon) co Socpertie to bring an end to the te of teu in auch a Sats. Howoven tho vak of ‘weich would bo significantly redueed whee positive steps ae talon to ry te pee torcwe by obtaining credible asin, There would be no breach of tne avy hee, for example, sporadic ute of rare might be suspected, Roles and responsibilities 27, ill selevant agency stff should case that they are familiar with the idence in is paps, togeiher with en rleted advice cteulaed by the Ageny "Nominated stat wil be responsible for deciding whether to proceed i eases chee ay eee Puhace is considered tobe» sk of misuextment and they wi also be required to fom judgments aboot the adequacy of caveste and apuranees. Iv easce of paicler tificalty or sensitivity, or where the is considered fo be a ret of miseatment notwithstanding any cavens or astornces, the dedsion should be refers nominated senior taf 2h Tho Lgl Adviters in bo Agarcis will be able fo advise on any legal esos that arise in perelar cases. Thee will include whebier what is Lagu sect a ticular state or lain servis, cx what i knowin a pester ets, races thet ‘here is foresight ofa reel possibilty of mieteatnen. The LAs wil alco be sale vise wheter entisipated consequences tnount fo (orure oF miseninea, oe instance misireabnent ean inchide tetoient cer thn physical inury. Icon ncode ental erty and could polatially aie fom indefinite nd nlawl tenon) ‘Avice can also be given ou ihe sta oF a detsins and whether he ls eniled to ha protection of the Geneva Conventions. Thay will aap be able (o sdvte on the ‘oqnoy of any caveat or saucenes tat have been reeive, Procedure 29. Different consideration wil pply depending on whe tho Agencien o tion 10» lisison verviea, which mey sesok ip an etssion or be used inthe quesioning oft individ a tention, or When seeking infrmation ftom a lion tare, which ‘maybe obttne for an iia in econ: or (@) recive information fom sion service, which ray have bes busied fom an individu in detention, (0) Passing orsecking infomaaion 30, The officer mutt consider wheter hie actions might result in the totus Imisertment oft individual, He neato identity which of te allowing fete eae @) he knows thet hie actions wil not result in torture or misweannest or ‘Re doce not fees a tel nosey thar such consequences wil ©) while he docs not tow, he forsecs sisal posiility thatthe ‘sousoquences of hie ttions wil include tomar or mistreatment, or (©) be knows whet the consequences of is actions will be an ‘sonsequence mlute torture or misesinen (© He lnows that hi etons wil no results torture or mistreatment or he does ‘ot foresee areal possibilty that such consequences wil reall, 31, Im accordance with standard pratice, before passing any infomation to P12ad isin service, an offeee should alvays atech the standard inson eaves t the Snformstion: "This infermaion has bow eommunisfed in eontdence loth ecient fgovemment ond shal) not be relessed without the agreement of the Diitsh ovement 32 Where the officer doesnot foresee a ree possiblity that he consequenes of his actions wil include torters ar mistreatment, er where be knows thet such nsoquenoes will not result from his sens, no farther caveats ate netesary, To proecd wil be ivf 33, The eriteal question is what steps should the offer take to inform hinseif before teiding whether le forcsees «real posit. Wilt the Is leat obligation 09 staf 1 seek out potentially relevent infomation, the fer shold neue tat he is resonably wall informed of the practioes of particular nate and Tsison eviees, © While he doesnot know, he frees a real pasty that the consenuencer will che torture or mistreatment 34. tte olicer foresees a real posit that his ations will esl in tore or misteatment, he must ceflr the miter 0 Mt stair line management before mossedig firth 38, Line management may oonclude tat there i aot a real possi hat minvestnent wil occur, in which ease the offear may proceed Bia if line managerent share the aisessmiet of the efien, they should consider attaching n fortes eaves othe information oF reqs, in tion tothe stndird Vason vent Set out above A Tarher enveat coud be to he effect tet, a propriate: (the informason should not be wed asthe bess for exceutive ation, i) the infrmation shuld not be used atthe basis for questioning sty incvidl, (is) the information isto be used at the basis for questioning cay individsl, such questioning shoutd conform wit inereticns ga sandarés; () the information sought should nat be abiined ftom any individual in detention; or (©) :€ te information may be ebtined fom any invidv in detention, ‘he questioning of im should conform with intematonsl gt sander, 36. However, scavest is only of vaub if he officer believes that it wil be ‘bbscve. so that it eliminates tho rie chat an individual att be msteied at ili Ps[= sesulloPhis actions, 2 ng MO tought tat caveats lone will safes, mangement tous entidersccking specific asuances tom the lnison sevice in quetion a pence by misaiment ceuring. Any sarznces mit be rll an cle ssturme which wil nt beabieved sof vals. However once tes nea reliable eanurances have bean reesived, tho inlemled ection may te von eee ‘may proceed It wil be awa aay itt 201 sntidered posible wo obin eee assiraen,o ihre any Govbt aboot the rainy of asrmoesresived, the mater should be roared senior managenent before procatng fire. Senior’ maagemnt, have eh ice from the Ls as they judge neceeary inthe pocalarcroummies ca deeide whether to nutes: ihe proposed acon. They will balance te aie oe imistentment andthe risk Ut the offitsr’s actions could be judge to be alec uns the wed forte proposed acton. Al ofthe relevan!ecunones wl be taken ite acount. These wil ine the open inperve for he srosaty feto, such af the action avaves passing or chaning Heswing tte a level ef misventnententcipated snd how ikl those consequenans eo geht Saclery eal cases, ener management ty ned teeter ie mae rs tnd in sme cae it ny be noessay fo cont Minster. This proces coon {0 satire tha propriate visibly and eonedesion of Ihe sek Sf ears ee ‘shes ple, (2 He knows what the consequencer wil be end those consequences include 38g procure inal the stn as fr () above, with dhe mate being refered upwards as rosie. However if, even with the woe of vents site tasvcances, it in own Ghtt the cosequenite wil inchs trae os merece thon the action vil not be allowed to prod, The A a guborge ny action which itis kn tin tn ©) Receiving ems 40 Je unikely that any single instance of acceptnce by an offiear of information Gum a ison service will snout to erm! offence or breach of civil or intestine Ly 41, _ However, it is posible that resiving infomation fom iis service vin sortespondenee or Uinigon reetngs, eould nce that lisioon sevice to misven fktsnce in order to maintain or dovelop the ison relationship, Por cxameisy Unkon srvce Knowing Ghat the Ageacy wan lnlreted in cbtaningfevke information fom a detines might incoreclyconchide tet the Agency mead are (hem to obtain if neste, though tortie or misretne. 4 ‘Mites the Aasnoy koow or has seat to believe that particule PiaSSS Se os lace oer misvounan a bis nfomsin, ie Ago shuld ‘paside olainaesures bef cninlas i sive ah tiene Riche ara Posse wo obiaa reliable msuenes ofthe itty ea ae Teas cl attranees restive, snor management, aking avi fem tie ee srrhe cient dite whether to conn to reesve sch information coe Sr leant cumstances wil beak in acon In patcalay enn sescenmaane! may seed i es he mane pa ann son cea ey nny Soest Minis. This proces i designed to conus he sen ‘stot nd consideration ofthe sk of naw acne ike ps cece 220, 8 where credible allegnton or ater infomation is ecived that eran aber mistcatnent has bee dona deities, hs soul beeen on aenat of tlevant manages. Where tat deisnes has povided intercon fone partly ae te ae ae relevant Deprinens, Agencies aad Mines rt gey wil fo consider whether 1 rash ellegntons with ek cos ces, wiho th pail Usison sevice. Itech an elegson or ores Tene, £,°Me where assurances have bean obit, thie woud. oka ee ‘plications forthe cedbitty of ny future astrances om tht ane ce ilahitv and use of detains infomation ovat te Steunstaces in whlch dtines infomnaon hes been obtned wil be selevant in aseesng it eli seek as much context ae possible, paren However, die Agenies not pees oe tld the opel thlihed 4 x mtr of aw hat information may be used ay the base {& cpertions acon, whatever the circumstances in which thar bos Sa ewover, whee I exablished tat ioraton bas been obaind by orn ing aZen 0 rely on that infomation neg pocedings, for insane ooo de ‘Aaeey’s operational actions oF to supper the iking of ope apne wae Tuan deviation or exsuson, LAs ae able to avis ont pone epee this evidential br in partouler cases,