1. This is
the second report by the United Kingdom under article 19 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. The United Kingdom's initial report under the Convention
was submitted in March 1991 (CAT/C/9/Add.6) and officials from the
United Kingdom Government were examined on that report by the Committee
against Torture in November of that year (CAT/C/SR.91 and 92 and CAT/C/SR.88-103
and Corrigenda).
2. Paragraph
3 of the initial report referred to the United Kingdom's ratification
of the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment, which entered into force in
respect of the United Kingdom on 1 February 1989. A delegation from
the committee established under that Convention visited Great Britain
in 1990; the committee's report was published in 1991, together with
a detailed United Kingdom response, which was followed by a progress
report by the United Kingdom in 1993. A delegation from the committee
returned to Great Britain in May 1994; the Government currently expects
to receive the committee's report of that visit early in 1995. A delegation
from the committee visited Northern Ireland in 1993; its report was
sent to the United Kingdom Government in April 1994. The Government's
response was published on 17 November 1994.
3. Paragraphs
4 to 7 of the initial report summarized the legal position in the
United Kingdom regarding torture. Paragraph 4 referred to section
134 of the Criminal Justice Act 1988, which makes torture an offence
and puts beyond doubt the United Kingdom's commitment to enact the
provisions of article 4 of the Convention; there have not been any
prosecutions under this provision.
4. As noted
in paragraph 9 of the initial report, the United Kingdom is a unitary
State and comprises England and Wales, Scotland and Northern Ireland;
references in this report to "Great Britain" refer to England
and Wales and Scotland taken together. England and Wales, Scotland
and Northern Ireland each has its own legal system, but similar principles
apply throughout the United Kingdom.
5. The initial
reports of the Crown dependencies of the United Kingdom are contained
in part 2 of the present report. The periodic reports of the dependent
territories are contained in part 3, as are the initial reports of
Hong Kong and Bermuda.
II. INFORMATION RELATING TO ARTICLES 2 TO 16 OF THE CONVENTION
Introduction
6. The following
information is supplementary to that provided in the United Kingdom's
initial report of March 1991 and by the United Kingdom delegation
at the meetings of the Committee in November 1991 which discussed
that report.
7. As described
in this part of the report, there have been a number of legislative
and administrative developments since 1991 relevant to the United
Kingdom's obligations under the Convention. These include:
(a) The
Asylum and Immigration Appeals Act 1993, which came into force in
July 1993 and provides for an in-country right of appeal at some stage
before removal for all refused asylum applicants, except for those
who represent a threat to national security (see art. 32 (2) of the
1951 United Nations Convention relating to the Status of Refugees).
(See paras. 15-23 below);
(b) The
Police and Criminal Evidence Act 1984 (Tape Recording of Interviews)
Orders 1991, which, from 1992, has required the tape recording at
police stations in England and Wales of interviews with persons suspected
of the commission of an indictable offence. (See paras. 33-34 below);
(c) The
Northern Ireland (Emergency Provisions) Act 1991 Codes of Practice
for the detention, treatment, questioning and identification of persons
detained in Northern Ireland under the Prevention of Terrorism (Temporary
Provisions) Act 1989, which came into force on 1 January 1994. (See
para. 47 below);
(d) The
appointment in Northern Ireland in December 1992 of an Independent
Commissioner for the Holding Centres to observe, comment on and report
on the conditions under which persons suspected of terrorist offences
are held at the police offices. (See para. 58 below);
(e) The appointment in
December 1992 under the Northern Ireland (Emergency Provisions) Act
1991 of an Independent Assessor of Military Complaints Procedures
in Northern Ireland to provide an independent audit of the procedures
for handling non-criminal complaints against the armed forces in Northern
Ireland. (See paras. 119-120 below); and
(f) The
Education Act 1993, which provides that, where corporal punishment
is administered to privately funded pupils in independent schools,
the punishment should not be inhuman or degrading. (See para. 131
below).
8. Articles
in relation to which there have been no new legislative or administrative
developments, or in relation to which the Committee did not request
additional information during its consideration of the initial report,
(that is arts. 6 and 8) are not included in this report. As in the
initial report, the United Kingdom has provided information as fully
as possible, but
the inclusion
of particular points does not necessarily mean that the United Kingdom
considers that they fall within the scope of particular articles of
the Convention.
Articles 2 and 4
9. During
the oral examination on the initial report (CAT/C/SR.92, para. 1)
the United Kingdom delegation undertook that the texts of the legislation
on torture would be forwarded to the Committee with the second report.
(There are also various relevant offences under the common law). The
relevant legislation is contained in the:
Criminal Justice Act
1988 (sections 134, 135 and 172(1) to (3));
Offences against the
Person Act 1861 (sections 16, 18, 20 and 23); and
Geneva Conventions
Act 1957,
and the texts
are attached at annex A.
Article 3
Extradition
10. Article
3 of the Convention requires that "No State Party shall ....
extradite a person to another State where there are substantial grounds
for believing that he would be in danger of being subjected to torture".
During the oral examination on the Initial Report (CAT/C/SR.92, para.
51) the Committee suggested that specific provision should be made
in legislation or in administrative circulars in order to prevent
extradition in such circumstances.
11. The United
Kingdom Government has carefully considered the Committee's suggestion,
but remains of the view that existing law and procedures offer adequate
assurance that no person would be extradited where there was a risk
of torture. The likely treatment on return of the person sought, prison
conditions, fairness of trial, standards of justice, possible abuse
of process, relevant penalties following conviction and the motives
of the requesting Government are all factors which are carefully considered
before the United Kingdom enters into new extradition arrangements
with any State and which the courts and the Secretary of State take
into account when considering individual extradition requests. Under
sections 6 (1)(c), 6 (1)(d), 11 (3)(c), 12 (1) and 12 (2)(a)(iii)
of and paragraphs 1 (2) and 6 (2) of Schedule 1 to the Extradition
Act 1989, extradition would be refused if it appeared that the person
sought would suffer ill treatment or torture if returned. The European
Convention on Human Rights would also provide protection in such a
case.
12. The ultimate
decision whether or not to extradite a person is made by the Secretary
of State. Section 12 (1) of and paragraph 8 (2) of Schedule 1 to the
1989 Act confer on him a completely unfettered discretion to refuse
to return any person whose extradition has been requested and who
has been committed by the court to await the Secretary of State's
decision on the request. He takes into account all relevant considerations,
including, if it were to arise, the provisions of article 3 of this
Convention. Given that, in practice, the decision is made by the Secretary
of State, no administrative circulars on the question have been issued.
13. In addition,
a person whose extradition has been requested has the right to make
representations against his return to the Secretary of State, which
must be considered; there is no restriction on the nature of the representations
which may be put forward. Any decision of the Secretary of State to
order surrender is open to challenge by way of judicial review. Unless
the courts are satisfied that his decision is lawful and has been
properly made, it will be overturned.
14. For these
reasons, United Kingdom legislation has not been amended in the way
suggested by the Committee.
Asylum
15. The number
of asylum seekers entering the United Kingdom rose sharply from some
4,000 in 1988 to a peak of 45,000 in 1991. Following the introduction
of new screening procedures, the number of applicants fell to 25,000
in 1992 and 22,400 in 1993 but this was still over five times higher
than the figure for 1988. The numbers put severe pressure on the existing
system so that a large backlog of cases developed and applications
can often take several years to resolve.
16. Of the
decisions taken concerning asylum claims, there has been a marked
decrease in the percentage recognized as refugees as defined by the
1951 United Nations Convention relating to the Status of Refugees;
the recognition rate in the early 1980s was 60 per cent but this fell
to 23 per cent in 1990 and to only 3 per cent in 1992. However, although
the majority were found not to be refugees, many (44 per cent in 1992)
were nevertheless allowed to remain on an exceptional basis, mainly
because of delays in dealing with their applications and consequent
practical difficulties in enforcing departure. There was also evidence
of a significant number of fraudulent and multiple applications. Throughout
this period, the United Kingdom continued to assess applications consistently
against the criteria set out in the 1951 Convention; changes in recognition
rates did not, therefore, result from the Convention criteria being
applied in a more restrictive or stringent way, but, rather, from
changes in the nature of the applicants.
17. The Government
responded to the situation in various ways. In particular, resources
were increased significantly, procedures were streamlined and new
legislation - the Asylum and Immigration Appeals Act 1993 - was brought
into force in July 1993. The 1993 Act, and the accompanying changes
in the Immigration Rules made under the Immigration Act 1971 and the
Asylum Appeals (Procedure) Rules 1993, apply a balanced approach:
the aim is to ensure that unfounded applications are dealt with expeditiously
and with finality, while genuine refugees continue to be protected.
The following paragraphs briefly explain the main provisions of the
legislation.
18. A fundamental
change made by the 1993 Act is the introduction of an in-country right
of appeal at some stage before removal, with an oral hearing before
an independent Special Adjudicator, for all refused asylum applicants,
regardless of their immigration status, except for those who represent
a threat to national security (see art. 32 (2) of the 1951 Convention).
(Previously, asylum appeal rights were limited.) There are strict
time-limits within which any appeal should be determined and there
is particularly rapid treatment of any appeal relating to a case where
the Secretary of State has certified the claim to be "without
foundation" - i.e. either the claim does not raise any issue
as to the United Kingdom's obligations under the 1951 Convention (because
the applicant arrived here via a safe third country) or it is otherwise
frivolous or vexatious. All appeals in "without foundation"
cases are dealt with under an accelerated appeal procedure and, where
the applicant is detained and certain other criteria are met, the
intention is to determine the appeal within seven days of its receipt
by the Appellate Authority.
19. Other
than in "without foundation" cases, an appellant whose appeal
has been dismissed by an independent Special Adjudicator can apply
for leave to appeal to an Immigration Appeal Tribunal. The 1993 Act
also provides a right of appeal to the Court of Appeal or, in Scotland,
the Court of Session on a point of law from a final determination
of the Tribunal. An application can be made to the High Court for
judicial review of a decision of the Secretary of State or the Special
Adjudicator.
20. The 1993
Act also allows the Secretary of State to curtail any existing leave
to enter or remain in the United Kingdom when refusing an applicant's
claim for asylum. This would normally lead to the institution of deportation
proceedings and the service of a notice of intention to deport would
give rise to a right of appeal to an independent Special Adjudicator
and thereafter to the Immigration Appeal Tribunal. Judicial review
could also be sought. Among other measures introduced by the 1993
Act was a power to fingerprint all asylum applicants for identification
purposes in order to prevent multiple applications and associated
fraudulent social security claims.
21. Introducing
the right to an appeal before removal for all those refused asylum,
regardless of their immigration status, represents a considerable
strengthening of the rights of asylum seekers in the United Kingdom.
The 1993 Act contains further important safeguards for asylum seekers.
For example, section 2 of the 1993 Act states that "Nothing in
the immigration rules ... shall lay down any practice which would
be contrary to the [1951] Convention". (This has the effect,
so far as immigration law is concerned, of guaranteeing the supremacy
of the 1951 Convention and the 1967 Protocol relating to the Status
of Refugees in domestic law.) Section 6 states that "During the
period beginning when a person makes a claim for asylum and ending
when the Secretary of State gives him notice of the decision on the
claim, he may not be removed from, or be required to leave, the United
Kingdom". Schedule 2 to the 1993 Act specifically incorporates
those provisions of the Immigration Act 1971 which prohibit the removal
of an appellant while an appeal is pending.
22. There
is a central government authority in the United Kingdom for deciding
asylum cases and all applications are considered by trained caseworkers.
Each case is individually assessed against the Convention criteria,
matters set out in the Immigration Rules and any other relevant factors.
It is the normal practice to interview an asylum applicant and account
is taken of all the relevant circumstances, including whether, in
the country of origin, there is "a consistent pattern of gross,
flagrant or mass violations of human rights". There is a detailed
knowledge of those countries from which asylum is sought or which
otherwise violate human rights: caseworkers receive advice from British
diplomatic posts and regular country assessments from the Foreign
and Commonwealth Office. A press clipping service is also available,
together with the reports and analysis of particular countries produced
by external agencies, such as the Office of the United Nations High
Commissioner for Refugees and Amnesty International, and caseworkers
attend various seminars, including talks by human rights experts and
immigration lawyers.
23. Limited
legal aid is available to asylum seekers, subject to their meeting
the financial eligibility limits, and the Government funds an independent
organization, the Refugee Legal Centre, which provides asylum seekers
with free advice regarding their applications and, where necessary,
represents them at appeal hearings.
24. As noted
in paragraph 26 of the initial report, as well as those applicants
who are recognized as refugees within the meaning of the 1951 Convention
and are granted asylum, exceptional leave to remain in the United
Kingdom may be granted to an individual who is not a refugee under
the 1951 Convention and has no other claim to stay in the United Kingdom,
but where there are compelling humanitarian reasons for not returning
the individual to his country of origin. This may arise, for example,
where there are substantial grounds for believing that the individual
could be subjected to torture or inhuman or degrading treatment, even
though this might not amount to persecution within the strict meaning
of the 1951 Convention.
25. The United
Kingdom is therefore satisfied that it meets its obligations under
article 3 of the Convention: those who fall within the terms of article
3 and who would otherwise be required to leave the United Kingdom
will either be recognized as refugees or granted exceptional leave
to remain.
Articles 5 and 7
26. As described
in paragraph 35 of the initial report, under section 134 of the Criminal
Justice Act 1988 the offence of torture is committed whether the conduct
takes place in the United Kingdom or elsewhere and whatever the nationality
of the perpetrator and victim.
27. The United
Kingdom has never refused to extradite a person whose return has been
sought in respect of an offence of torture. (In fact, no such request
has ever been received.) As a matter of domestic law, the extradition
of United Kingdom nationals for any offence is not precluded; as a
matter of policy, United Kingdom nationals are treated in exactly
the same way as nationals of other countries. The extradition of a
United Kingdom national would never be refused solely on grounds of
nationality.
Article 9
28. The Criminal
Justice (International Cooperation) Act 1991, to which paragraph 58
of the initial report referred, has now been fully implemented. This
enabled the United Kingdom to ratify the European Convention on Mutual
Assistance in Criminal Matters on 27 November 1991 and to participate
fully in arrangements under the Scheme Relating to Mutual Legal Assistance
in the Commonwealth. The Act is, however, available in relation to
requests for assistance from foreign courts or prosecuting authorities
even where the United Kingdom has no treaty obligations of this kind
with the country concerned.
Article 10
29. All training
programmes for law enforcement personnel, whether civil or military,
medical personnel, public officials and other persons who may be involved
in the custody, interrogation or treatment of any individual subjected
to any form of arrest, detention or imprisonment continue to emphasize
the need to treat everyone as an individual and with humanity and
respect and to act within the law at all times.
30. Training
for the police service, for example, continues to address the statutory
and common law provisions governing the rights of the individual.
In particular, a programme of training in investigative interviewing
has been introduced for all police officers in England and Wales;
the concepts and methods contained in this programme give full recognition
to the dignity and rights of the individual and are based on published
ethical principles. A second training programme, aimed at the needs
of those supervising interviews, is now being introduced.
31. All new
prison officers in England and Wales receive a nine-week training
course, in which they are taught the extent of their authority and
are given detailed guidance on what behaviour is appropriate in dealing
with prisoners; they also receive instruction on how to control and
restrain prisoners in an approved manner. Recent developments in training
concentrate on improving the relationship between prisoners and staff;
increasing emphasis is placed on developing the care aspect of the
prison officer's dual role of care and control and the initial training
of prison officers therefore emphasizes the importance of interpersonal
skills. All doctors, nurses and pharmacists who work in prisons are
subject to the same codes of practice as those working in the community
and receive additional training after recruitment to the Prison Service.
32. Immigration
Service officers engaged in law enforcement work and in the detention
of persons held under the provisions of the Immigration Act 1971 receive
training in the extent and proper exercise of their powers and in
racial awareness. Similar training is provided for private security
staff operating on behalf of the Immigration Department and engaged
in the detention or escorting of immigration detainees.
Article 11
Police
powers in England and Wales
33. As described
in paragraph 64 of the initial report, the powers of the police in
England and Wales in the investigation of crime and the safeguards
for the suspect are contained in the Police and Criminal Evidence
Act 1984 and the four Codes of Practice (A to D) issued under section
66 of the 1984 Act, which cover stop and search; search of premises
and seizure of property; the detention, treatment and questioning
of suspects; and the identification of suspects.
34. Further
to paragraph 64 of the initial report, the Police and Criminal Evidence
Act 1984 (Tape Recording of Interviews) (No. 1) Order 1991 came into
force on 1 January 1992. This required the tape recording at police
stations in England and Wales of interviews with persons suspected
of the commission of an indictable offence (that is an offence triable
by jury in the Crown Court) (except certain indictable offences relating
to terrorism or official secrets) in accordance with Code of Practice
E on tape recording issued under section 60 (1) (a) of the 1984 Act.
The requirement applied to all but one police force in England and
Wales; the Police and Criminal Evidence Act 1984 (Tape Recording of
Interviews) (No. 2) Order 1991 applying the requirement to that force
came into effect on 9 November 1992. The Code requires the tape recording
of interviews with a suspect at a police station under conditions
strictly controlled to ensure the integrity of the tape. A master
tape for use in any subsequent criminal proceedings is prepared under
seal in the presence of the suspect and copies of the tape are made
available to the defence and prosecution in advance of any court hearing.
35. In addition,
between 1 December 1992 and December 1994 all interviews at police
stations in England and Wales with those suspected of terrorist offences
were, on a trial basis, tape recorded in much the same way as cases
subject to Code of Practice E. The Government is considering, in the
light of the outcome of this trial, whether to extend the benefit
of the Code of Practice to terrorist cases.
36. Guidance
on video recording of interviews with suspects was issued to police
forces in England and Wales in February 1993. Forces were advised
that, in view of the considerable resource implications for the whole
criminal justice system, there were no plans to introduce widespread
video recording of interviews with suspects on a similar basis to
audio tape recording. The use of video recording equipment at force
level is a matter for the individual chief officer of police. At present,
only a limited number of forces make video recordings of interviews
and these are generally restricted to serious and complex cases.
37. Arrangements
have been introduced by all police authorities in England and Wales
for members of the public to be appointed as lay visitors to police
stations. Lay visitors make unannounced visits to police custody suites
where they talk to detainees and monitor the application of the requirements
of Code of Practice C issued under section 66 of the Police and Criminal
Evidence Act 1984, relating to the detention, treatment and questioning
of suspects. Lay visitors report on their visits to the police, the
local police authority and community groups.
Police
powers in Scotland
38. Further
to paragraph 65 of the initial report, which described how the powers
of the police in Scotland and the safeguards for the suspect are established
primarily under common law, non-statutory guidance on the tape recording
of interviews with suspects in non-terrorist cases has been issued
to all police forces in Scotland; all Scottish police forces record
at least interviews conducted by their Criminal Investigation Department
as a matter of routine. The Government is also considering, in consultation
with the police and the Crown Office, the issues associated with the
tape recording in Scotland of interviews with terrorist suspects with
a view to determining what arrangements might be involved.
39. It is
considered that there is no need for lay visiting to police stations
in Scotland because prisoners are not held on remand in police cells
and are generally held only overnight to appear in court the following
day; existing arrangements, which allow for visits to police stations
by members of police authorities and by the Scottish Prisons Inspectorate,
are thought to provide an adequate safeguard.
Police
and military powers in Northern Ireland
40. As described
in paragraph 66 of the initial report, police powers in Northern Ireland
in dealing with non-terrorist crime are similar to those in England
and Wales; the Police and Criminal Evidence (Northern Ireland) Order
1989 contains largely equivalent provisions to the Police and Criminal
Evidence Act 1984. Police procedures in dealing with such crime are
similarly governed by statutory Codes of Practice; these came into
force early in 1990. Tape recording of interviews with non-terrorist
suspects has been introduced on a non-statutory basis; a statutory
Code of Practice is in preparation. In addition, members of the public
have been appointed as lay visitors to police stations in Northern
Ireland; they make unannounced visits to police custody suites where
those detained under the 1989 Order are held and report on their visits
to the Police Authority for Northern Ireland.
41. As the
Committee is aware, campaigns of organized terrorism related to the
affairs of Northern Ireland have continued in the United Kingdom and
particularly in Northern Ireland. The main republican terrorist organization,
the Provisional IRA (Irish Republican Army), has aimed to force political
change to create a united Ireland, involving the withdrawal of Northern
Ireland from the United Kingdom. Over the years, the Provisional IRA
has murdered and wounded many civilians as well as members of the
police and armed forces. It has also sought to destroy the economic
regeneration of Northern Ireland by periodically bombing city or town
centres, and practises widespread intimidation, including vicious
bodily attacks (such as "kneecapping" and other forms of
"punishment shooting"), against individual members of the
Roman Catholic community. As an indication of the extent of its criminal
activity, figures relating to the amount of compensation paid in recent
years in respect of damage to property in Northern Ireland are set
out in the table below:
Payments
by the Compensation Agency
1990-91
£22,771,159
1991-92
£33,096,467
1992-93
£75,727,801
42. The Provisional
IRA has derived some funds from activities such as smuggling and video
piracy, which drain money from legitimate commerce in Northern Ireland
and elsewhere. In general, however, it has raised money by exploiting
the local community by, for example, extortion and creaming off profits
from registered clubs, gaming machines and taxis. It has smuggled
arms and explosives into the country and has developed its own weaponry,
including mortars for attacking security force vehicles and bases.
On 31 August 1994 the IRA declared what they described as a "complete
cessation of military operations". Although the IRA have not
yet confirmed that this cease-fire is permanent, the UK Government
has decided to make a working assumption that permanence is intended.
43. So-called
"loyalist" terrorist organizations include the Ulster Volunteer
Force and the Ulster Freedom Fighters, which, like the Provisional
IRA, are proscribed in Northern Ireland under the Northern Ireland
(Emergency Provisions) Act 1991. They have been primarily involved
in shooting attacks on Roman Catholics in Northern Ireland, either
because they believed the victims to be connected with republican
groups or, often, simply because they were Roman Catholics. Like the
Provisional IRA, they have intimidated the local community by "punishment
shootings" and other forms of violence and have derived income
from extortion and racketeering. Figures showing the number of killings
in recent years claimed by republican and loyalist terrorist organizations
are set out in the table below:
Republicans
Loyalists
1991 44
40
1992 34
40
1993 37
47
On 13 October
1994 the "loyalist" terrorist organizations announced that
they too would cease operational hostilities, but made it clear that
this was dependent upon a continuing republican cease-fire.
44. The Government
deals with terrorism, from whichever extreme it comes, through the
normal process of justice. In particular, terrorists are prosecuted
only for the criminal offences they have committed, not for their
beliefs. There are no political prisoners and there is no imprisonment
without trial in open court. In response to the terrorist threat,
however, the Government has, since 1973, enacted certain additional
powers and offences, which are currently contained in the Prevention
of Terrorism (Temporary Provisions) Act 1989, which applies in Great
Britain as well as Northern Ireland, and the Northern Ireland (Emergency
Provisions) Act 1991. These are both temporary Acts whose operation
is reviewed each year by an independent reviewer, currently Mr. J.J.
Rowe QC, whose reports are published and the continuance of both Acts
is subject to annual renewal by both Houses of Parliament. As well
as being subject to annual parliamentary renewal, the 1991 Act has
a maximum duration of five years. Mr. Rowe is currently conducting
a fundamental review of the Act, which will be published and which
the Government will consider carefully in determining whether such
legislation remains necessary and, if so, the content of the replacement
Act. HMG has made it clear in the past that, in the event of a genuine
and established cessation of violence, the whole range of responses
which have had to be made to that violence would be looked at afresh.
While the need to protect UK citizens remains paramount, the cease-fire
has already allowed the security forces in Northern Ireland to respond
to the diminished threat.
45. Although
a number of modifications have been necessary to legal procedures
in Northern Ireland because of the nature of terrorism, the central
principles of British justice apply: the onus is on the prosecution
to prove guilt beyond reasonable doubt and the defendant has the right
to be represented, if in need at public expense, by a lawyer of his
own choice.
46. A comprehensive
range of statutory and administrative safeguards is in place to ensure
that those detained in Northern Ireland under the Prevention of Terrorism
(Temporary Provisions) Act 1989 are treated in a manner fully consistent
with the United Kingdom's human rights obligations; many of these
were discussed in the memorandum attached to the letter of 28 April
1992 to the Chairman of the Committee, Mr. Voyaume, from the head
of the United Kingdom delegation at the oral examination on the initial
report. The main safeguards are set out below.
Codes
of Practice
47. All persons
arrested in Northern Ireland under the Prevention of Terrorism (Temporary
Provisions) Act 1989 on reasonable suspicion of involvement in terrorist
crime are dealt with strictly in accordance with the statutory Codes
of Practice on the detention, treatment, questioning and identification
of such persons made under section 61 of the Northern Ireland (Emergency
Provisions) Act 1991. The purpose of the Codes is to ensure that police
officers act at all times with due respect for the rights of persons
in custody, having regard for any special needs, whilst at the same
time complying with their obligations to prevent escapes and investigate
crime. The Codes of Practice, a copy of which is attached at annex
B, replaced previous non-statutory guidelines and came into force
on 1 January 1994. Any police officer failing to comply with the requirements
of the Codes is liable to disciplinary proceedings and the Codes of
Practice are admissible in evidence in all criminal and civil proceedings.
Codes of Practice relating to the powers of stop, search and seizure
under the Northern Ireland (Emergency Provisions) Act 1991 and the
Prevention of Terrorism (Temporary Provisions) Act 1989 are being
considered.
Medical
treatment
48. Under
section 9 of the Code of Practice on detention, treatment and questioning,
a person detained under the Prevention of Terrorism (Temporary Provisions)
Act 1989 will be offered a medical examination, as soon as practicable,
on his arrival at a police station or police office (the latter are
also referred to as holding centres). If transferred to another police
station or office, on release and at least once every 24 hours, the
person will be offered a further medical examination.
49. If a
detained person requests a medical examination, a medical officer
must be informed as soon as practicable and arrangements made to conduct
the examination; in addition, a detained person may be examined at
his own expense by a medical practitioner from the practice with which
he is registered. A medical examination must be carried out as soon
as practicable and may only be delayed by the police custody officer
in certain specified circumstances and only with the agreement of
the officer in charge of the investigation and the medical officer.
An examination by the detained person's own medical practitioner may
only be delayed as long as is necessary and in no case longer than
48 hours from the time of arrest; the power of delay has not, however,
been used in recent years.
50. If a
person is required to take medication in compliance with medical directions,
the custody officer is responsible for its safe keeping and for ensuring
that the person is given the opportunity to apply or administer it
at the appropriate times. Certain drugs may only be administered under
the personal supervision of a medical officer.
51. Even
if the detainee does not request it, a medical officer will be called
if the detainee appears, by virtue of physical or mental illness or
injury or other cause, to need medical attention.
Access
to outside contact and legal advice
52. Under
sections 44 and 45 of the Northern Ireland (Emergency Provisions)
Act 1991, a person arrested under the Prevention of Terrorism (Temporary
Provisions) Act 1989 has the right to have another person informed
of his whereabouts, and to consult a solicitor, as soon as practicable
following his arrest. The exercise of these rights may not be denied
but may be delayed in certain circumstances, defined under the law.
Delay may only be authorized by an officer of the rank of superintendent
or above and only for as long as is necessary and up to a maximum
of 48 hours from the time of arrest.
Review
of detention
53. Under
Schedule 3 to the Prevention of Terrorism (Temporary Provisions) Act
1989, where a person is detained under the Act, his detention must
be reviewed periodically by an officer not directly involved in the
case. The first review should be carried out as soon as practicable
after the beginning of the detention. Subsequent reviews should be
carried out at intervals of not more than 12 hours. The reviews must
be carried out by an officer of the rank of inspector or, after 24
hours, a superintendent. He must be satisfied that continued detention
is necessary and that the investigation is being carried out diligently
and expeditiously. He must offer the detainee the opportunity to make
representations about his detention, and he must record the reasons
for authorizing continued detention in the custody record.
54. The review
officer is also required to inform the detainee of his right to have
someone informed of his arrest, and his right of access to legal advice.
Where this has been delayed in accordance with circumstances defined
by law, the review officer is required to advise on whether the reasons
for such a delay continue to apply. Continued detention without charge
beyond 48 hours (and up to the statutory maximum of seven days) may
only be authorized by the Secretary of State, but the vast majority
of those arrested under the 1989 Act are either released or charged
within two days.
55. The table
below shows (by length of detention) the number of persons detained
in Northern Ireland in 1993 under the Prevention of Terrorism (Temporary
Provisions) Act 1989 and charged with a criminal offence or released
without charge:
Length
of detention |
Number
charged
|
Number
released
|
Less
than 2 hours |
|
|
2 and
less than 4 |
|
|
4 and
less than 8 |
|
|
8 and
less than 12 |
|
|
12
and less than 24 |
|
|
24
and less than 36 |
|
|
36
and less than 48 |
|
|
Total
under 48 hours |
|
|
2 days
and less than 3 |
|
|
3 days
and less than 4 |
|
|
4 days
and less than 5 |
|
|
5 days
and less than 6 |
|
|
6 days
and less than 7 |
|
|
Total
over 48 hours |
|
|
Overall
total |
|
|
Closed-circuit
television monitoring
56. The Government
has concluded, after consultation with the Chief Constable of the
Royal Ulster Constabulary, who is the principal security adviser to
the Secretary of State for Northern Ireland, that the introduction
of audio or video recording in police offices in Northern Ireland
would not be in the overall interests of justice. In the particular
circumstances of Northern Ireland, the electronic recording of interviews
would inhibit the chances of lawfully obtaining information that would
lead to the conviction of terrorists or to the saving of other people's
lives.
57. The position
remains essentially as set out in the 1979 Report of the Committee
of Inquiry into Police Interrogation Procedures in Northern Ireland
(the Bennett Report), which concluded that video recording should
not be introduced, but recommended that police interviews with terrorist
suspects should be monitored by a uniformed inspector or chief inspector
through the medium of closed-circuit television. The Committee is
referred to page 3 of the memorandum attached to the letter of 28
April 1992 to its Chairman from the head of the United Kingdom delegation
at the oral examination on the initial report.
58. All interviews
with terrorist suspects at police offices in Northern Ireland, where
those arrested under the Prevention of Terrorism (Temporary Provisions)
Act 1989 are held, are continuously monitored on closed-circuit television
by a uniformed inspector or chief inspector unconnected with the investigation.
Independent
Commissioner for the Holding Centres
59. In December
1992, the Secretary of State for Northern Ireland appointed Sir Louis
Blom-Cooper QC as the Independent Commissioner for the Holding Centres
(also known as police offices). The role of the Commissioner is to
observe, comment on and report on the conditions under which detainees
are held and to ensure that both the statutory and administrative
safeguards are being properly applied. The Commissioner may inspect
all areas where detainees are held and the arrangements for closed-circuit
television monitoring. He may also scrutinize custody records and,
with their consent, may interview detainees abut their welfare and
treatment. The Commissioner's first annual report to the Secretary
of State was published in March 1994; a copy is attached at annex
C. In the report the Commissioner concluded that he had found absolutely
nothing that could give the slightest concern about the care and treatment
of detainees in the custody of uniformed officers of the Royal Ulster
Constabulary.
Arrest
by the armed forces
60. Under
section 18 of the Northern Ireland (Emergency Provisions) Act 1991,
any member of Her Majesty's Forces on duty may arrest a person in
Northern Ireland who he has reasonable grounds to suspect is committing,
has committed or is about to commit any offence. It is the policy
that, wherever practicable, any such arrest should be made by the
police under their own powers and, in cases where it is necessary
for a soldier to make an arrest, the arrested person should be handed
over to the police as soon as possible. By law, persons arrested by
the army must be handed over to the police within four hours or else
released. Arrested persons are not questioned by soldiers, except
for the purpose of establishing their identity or movements, or what
they know concerning any recent explosion or other recent incident
endangering life, or concerning any person killed or injured in such
an explosion or incident. No further questioning or interrogation
of arrested persons is carried out by soldiers. To illustrate the
small number of occasions on which soldiers exercise their power of
arrest, the following figures are given:
Year
1990 1991 1992 1993
Arrests
63 108 55 87
under section
18
of the 1991
Act
(or its
predecessor
power)
Right
of silence
61. During
the oral examination on the initial report the Committee asked questions
about the right of silence in the United Kingdom and, in particular,
about legislation introduced in Northern Ireland in 1988 which allows
inferences to be drawn by the courts from an accused person's silence
when asked certain questions by the police or from his failure to
give evidence in court when standing trial. Initial research conducted
in 1990 into the effects of the order's right of silence provisions
was of only limited value because of the absence of any pre-1988 data.
A more comprehensive programme of research into the effects of the
order has accordingly been commissioned. It will provide a fuller
analysis of the operation and the effect of articles 3-6. The research
is due to be completed in 1995.
62. Similar
legislation has since been introduced for England and Wales in the
Criminal Justice and Public Order Act, which became law on 3 November
1994. The aim of the legislation is to assist the investigation and
prosecution of offences by allowing the courts to draw proper inferences
from a person's silence in circumstances where he could reasonably
be expected to offer an explanation - for example, when asked to account
for certain objects, marks or substances found on or about his person
at the time of arrest. The legislation will not compel a person
suspected of an offence to answer questions, and any person detained
by the police or appearing before the courts will have the choice
to remain silent if he wishes. No inference could be drawn from a
person's silence unless he has been warned, when questioned, about
the risk of adverse comment and no person could be prosecuted or convicted
unless there was independent evidence for his guilt, apart from silence.
63. The legislation
does not constitute a change in the rules of evidence and will not
affect the existing safeguards for persons detained and questioned
by the police. The only substantial change in police practice in England
and Wales will be the introduction of a new form of caution, to ensure
that those questioned by the police are aware of the possible consequences
of remaining silent. The proposed wording of the new caution is as
follows:
"You do not have
to say anything. But it may harm your defence if you do not mention
when questioned something which you later rely on in court. Anything
you do say may be given in evidence."
64. The Government
believes that this change in the rules of evidence will help the courts
to reach rational conclusions on the facts of the case and will reduce
the present emphasis on confession evidence. It will therefore reinforce
current initiatives to foster police interview techniques which are
designed to elicit the truth rather than putting pressure on suspects
to answer questions.
65. These
provisions do not apply in Scotland where the question of inferences
from an accused person's silence is governed largely by the common
law. The Government is considering whether to make changes to the
existing law on the right to silence in Scotland.
Immigration
detention centres
66. The provisions
governing the detention of persons subject to immigration control
and the relevant appeals procedures are contained in the Immigration
Act 1971 and the Asylum and Immigration Appeals Act 1993. The power
to detain is used as a last resort, when there are clear and positive
grounds for believing that the person will not voluntarily comply
with reporting requirements, and after all the known circumstances
of the person concerned have been taken into account. Consideration
of the cases of those detained is given the highest priority and the
need for continued detention is regularly reviewed.
67. As noted
in paragraph 75 of the initial report, the arrangements for the custody
and treatment of persons detained in immigration accommodation, and
the interview rules and procedures, are regularly reviewed. In addition,
visiting committees have been appointed at the two immigration detention
centres where detainees are held for more than a few days. The members
are appointed by the Secretary of State and are recruited from various
sources, nominations having been sought in the past from such organizations
as the Council of Churches for Britain and Ireland, the Samaritans
and the authorities responsible for local government. In addition
to seeking to have representation from both sexes, efforts are made
to recruit members from the ethnic minorities.
68. The role
of the committees is to have regard to the welfare of the detainees
and to offer advice on the running of the centres. Committee members
have the right to enter the centres at any time, to go unaccompanied
wherever they wish within the centres and to speak to anyone who wishes
to speak to them or to whom they wish to speak, such interviews to
be in private if desired. The committees appoint a rota visitor each
week and he or she is expected to visit the centre at least once during
that time and to take up any matters of concern with the Immigration
Service at the centre. The committees meet once a month and are expected
to submit an annual report to the Secretary of State on the running
of the centres, such reports to include any advice or suggestions
they may consider appropriate.
69. In addition,
the Chief Inspector of Prisons in England and Wales (see para. 78,
below) is invited to conduct inspections of these long-term immigration
detention centres. Such inspections have already been conducted at
Harmondsworth Detention Centre and at Campsfield House Detention Centre,
which opened in November 1993.
Mental
health
70. Further
to paragraphs 83 to 95, 103 and 137 to 139 of the initial report,
the treatment of people detained in England and Wales under the Mental
Health Act 1983 and in Scotland under the Mental Health (Scotland)
Act 1984 continues to be monitored by, respectively, the Mental Health
Act Commission and the Mental Welfare Commission for Scotland, which
are independent statutory bodies. All detained patients are offered
the opportunity of an interview in private when the commissioners
visit hospitals. Similar provisions apply in
Northern
Ireland; the Mental Health (Northern Ireland) Order 1986 provides
that the Mental Health Commission for Northern Ireland keep under
review the care and treatment of all mentally disordered patients.
Prison
conditions
71. The Government
remains committed to providing decent conditions for prisoners and
eliminating overcrowding. The largest prison building programme in
England and Wales since Victorian times has been completed with 21
new prisons having opened since 1985. The most recent prison, at Doncaster,
opened in June 1994 bringing the number of new places provided since
1985 to a total of 11,285, at a cost of over £1,200 million. In addition,
7,500 places have been provided at existing establishments since 1979.
Another six new prisons are to be designed, constructed, managed and
financed by the private sector. The first two are expected to open
in 1997-1998.
72. As a
consequence of the building programme, at the end of October 1994,
83 per cent of prisoners in England and Wales were being held in uncrowded
conditions. In 1987-1988, over 5,000 prisoners were being held three
to a cell designed for one person, this practice has now been eliminated,
while the number of prisoners held two to a cell designed for one
person has been halved from over 17,800 in January 1987 to some 8,600
in October 1994.
73. Refurbishment
and modernization of existing establishments continues to be an important
part of the building programme, providing enhanced security and control
measures and upgraded facilities, including access to sanitation at
all times. By the end of 1994, 95 per cent of prisoners had access
to sanitation at all times; and it is intended that all prisoners
should have such access by February 1996. In 1994/95, the Prison Service
in England and Wales will be completing the modernization of 14 wings
at older, Victorian prisons and beginning work at another 8 establishments.
74. During
the oral examination on the initial report (CAT/C/SR.91, para. 9),
the United Kingdom delegation reported the publication, in September
1991, of a White Paper, "Custody, Care and Justice" (Cm
1647), following Lord Woolf's report into the prison disturbances
which took place in England and Wales in 1990. The White Paper sets
out a programme of work for the Prison Service into the next century.
In line with a government commitment in the White Paper, the Prison
Service introduced in April 1994 a code of operating standards, which
covers areas such as food, clothing, health, discipline, regimes,
accommodation, security and preparation for release. The code represents
the Prison Service's national standards, towards which all prisons
will, over time, be required to work.
75. In Scotland,
a new 60-place houseblock, or prisoner accommodation hall, is to be
constructed at Greenock during 1995 and new houseblocks are planned
at Dumfries and Polmont. In April 1994, 56 per cent of prison places
had access to various forms of night sanitation. The programme to
provide access to sanitation at all times is continuing, with major
works currently in progress at Dumfries Prison and further work is
scheduled to start in 1995 at Edinburgh and Barlinnie.
76. A prison
survey was undertaken in Scotland in 1990/91 consulting prisoners
on their views on aspects of prison management, facilities, conditions
and relationships; the survey was repeated in 1993/94 and the results
compared with a view to identifying changes occurring in establishments.
An information pack for prisoners was distributed in late 1994; it
is suitable for all categories of prisoner and provides useful information
on issues concerning prisoners' rights and welfare.
77. In Northern
Ireland, the prison estate is small: there are four prisons and one
young offenders centre. With the exception of Belfast Prison, no part
of the prison estate is more than 20 years old. A major refurbishment
of Belfast Prison had been planned to include provision of integral
sanitation and other improvements. However, considerable damage was
done to the prison during violent disturbances there in July 1994.
As a result, all paramilitary prisoners being held on remand were
transferred to HM Prison Maze, and it was decided that these prisoners
will not be returned to HM Prison Belfast in the short term. Against
this background, and in view of the substantial costs involved in
the scheme for refurbishing HM Prison Belfast, the Controller of Prisons
appointed a working party which conducted a comprehensive review to
consider how best use can be made of the prison estate and consider
options for the future deployment of prisoners within the estate whilst
also taking into account the best use of capital and manpower resources.
The cost of refurbishing existing accommodation at Belfast Prison
to the required standard is estimated at £34 million and the preferred
option would be closure of Belfast and expansion of facilities on
the site at Maghaberry Prison. However work is currently being carried
out to prepare a detailed investment appraisal of the options before
a final decision is taken on Belfast Prison's future.
Prison
inspection
78. The independent
Inspectorate of Prisons in England and Wales, of which the Chief Inspector
is Judge Stephen Tumim, continues to carry out inspections of individual
Prison Service establishments and to report to the Government on the
treatment of and conditions for prisoners; the report of each inspection
is published. The Inspectorate also carries out reviews of general
aspects of the work of the Prison Service and investigates particular
incidents at the Government's request. In addition, the annual report
of the Inspectorate is laid before Parliament.
79. The Inspectorate
of Prisons in England and Wales is also invited to conduct inspections
in Northern Ireland, while, in Scotland, there is a separate, smaller
Prisons Inspectorate with its own Chief Inspector. Its duties are
similar to those of the Inspectorate in England and Wales: cyclical
inspections of and reports on individual establishments, studies of
general aspects of the work of the Scottish Prison Service and any
particular investigations which the Government may request. In addition,
it is responsible for the inspection every three years of the police
cells used in isolated areas to hold prisoners awaiting trial locally
or transfer to a main prison.
Suicide
prevention
80. The table
below sets out the number of self-inflicted deaths in prisons in England
and Wales in recent years:
|
Male
|
Female
|
Total
|
1988
|
37
|
-
|
37
|
1989
|
46
|
2
|
48
|
1990
|
49
|
1
|
50
|
1991
|
42
|
-
|
42
|
1992
|
39
|
2
|
41
|
1993
|
46
|
1
|
47
|
1994*
|
40
|
1
|
41
|
* to 30 September 1994.
81. These
figures are set out by age of prisoner in the table below:
|
1988
|
1989
|
1990
|
1991
|
1992
|
1993
|
15-16 |
-
|
-
|
2 (4%)
|
1 (2%)
|
1 (2%)
|
-
|
17-20 |
9
(24%)
|
12
(25%)
|
8 (16%)
|
4 (10%)
|
6 (15%)
|
3 (6%)
|
21-25 |
8
(22%)
|
14
(29%)
|
7 (14%)
|
10
(24%)
|
15
(37%)
|
10
(21%)
|
26-30 |
7
(19%)
|
10
(21%)
|
13
(26%)
|
8 (19%)
|
7 (17%)
|
12
(26%)
|
31-35 |
2
(5%)
|
5 (10%)
|
5 (10%)
|
7 (17%)
|
3
(7%)
|
6 (13%)
|
36-40 |
4
(11%)
|
1 (2%)
|
8 (16%)
|
4 (10%)
|
5 (12%)
|
8 (17%)
|
41-45 |
2 (5%)
|
2 (4%)
|
1 (2%)
|
5 (12%)
|
2 (5%)
|
5 (11%)
|
46-50 |
2 (5%)
|
1 (2%)
|
2 (4%)
|
1 (2%)
|
1 (2%)
|
1 (2%)
|
51-55 |
2 (5%)
|
2 (4%)
|
3 (6%)
|
2 (5%)
|
1 (2%)
|
1 (2%)
|
56-60 |
-
|
1 (2%)
|
1 (2%)
|
-
|
-
|
1 (2%)
|
60+ |
1 (3%)
|
-
|
-
|
-
|
-
|
-
|
Average
age |
28.8
|
27.3
|
30.9
|
31.0
|
28.9
|
31.3
|
82. During the oral examination on the initial report (CAT/C/SR.92,
para. 53) the United Kingdom was invited to monitor the conditions
of detention of persons with suicidal tendencies. The United Kingdom
wishes to draw the Committee's attention to the fact that the Prison
Service in England and Wales has devoted considerable effort to identifying
and monitoring prisoners who are considered to be at risk of suicide.
In February 1994, a national instruction and guidance pack were issued
and are attached at annex D. These set out revised and updated policies
and procedures, which include reception screening, referral for medical
assessment and the provision of a wide range of counselling and support
services, such as volunteer befrienders. The voluntary sector Trust
for the Study of Adolescence assisted in the formulation of the new
policies and procedures in order to ensure that they were appropriate
to juveniles.
83. Responsibility
for implementing the instruction lies with the governor of each establishment,
who is supported by a local, multi-disciplinary suicide awareness
team. The team reviews procedures, monitors incidents of self-harm
and develops good practice in the care of those at risk of suicide.
All Prison Service staff receive training in suicide awareness and
a major training initiative is currently being undertaken to introduce
the new procedures.
84. A central
Suicide Awareness Support Unit advises establishments on all aspects
of suicide management and is evaluating the revised policies. In addition,
as noted in paragraph 78 above, all establishments are subject to
independent inspection by the Inspectorate of Prisons, the reports
of which comment on suicide prevention measures. Conditions of detention
are also regularly monitored by the Board of Visitors at each establishment.
85. Between
1981 and 1992 there were 67 self-inflicted deaths in Scottish prisons;
18 of the prisoners were young offenders. The Scottish Prison Service
launched its suicide prevention strategy in April 1992, when a guidance
manual was issued to staff setting out the Service's policy on helping
prisoners overcome suicidal tendencies and giving detailed instructions
on the procedures to be followed. All staff are trained in suicide
prevention as part of their initial training and the strategy is reviewed
annually to determine whether changes are required as a result of
operational experience.
86. The table
below sets out the number of self-inflicted deaths in prisons in Northern
Ireland in recent years:
|
Male
|
Female
|
Total
|
1988
|
2
|
-
|
2
|
1989
|
1
|
-
|
1
|
1990
|
1
|
-
|
1
|
1991
|
1
|
-
|
1
|
1992
|
-
|
-
|
-
|
1993
|
-
|
-
|
-
|
1994*
|
2
|
-
|
|
* to 22 August 1994.
87. These figures are set out by age of prisoner in the table below:
|
1988
|
1989
|
1990
|
1991
|
1992
|
1993
|
1994
|
16-20 |
1 (50%)
|
-
|
-
|
-
|
-
|
-
|
-
|
21-25 |
1 (50%)
|
-
|
-
|
-
|
-
|
-
|
1 (50%)
|
26-30 |
-
|
-
|
-
|
-
|
-
|
-
|
1 (50%)
|
31-35 |
-
|
1 (100%)
|
1 (100%)
|
1 (100%)
|
-
|
-
|
-
|
Average age |
20.5
|
31
|
31
|
32
|
-
|
-
|
25.5
|
88. In 1991, the Northern Ireland Prison Service produced a suicide
awareness and prevention manual, which, for example, provides guidance
on how prisoners facing a personal crisis can be identified and supported
through their difficulties. Each prison establishment and the young
offenders centre in Northern Ireland has a suicide prevention management
group, which meets on a regular basis, and staff training needs are
regularly reviewed. A general review of suicide awareness and prevention
policy is planned for later this year.
89. The most
recent suicide in an immigration detention centre occurred in 1990,
but there have been a number of attempted suicides in recent years.
Suicide awareness and self-injury prevention training and written
guidance are provided for Immigration Service officers and for private
security staff operating on behalf of the Immigration Department.
In addition, the Samaritans, the suicide prevention organization,
have a nominee on the visiting committees which have been appointed
at the two immigration detention centres where detainees are held
for more than a few days and which are described at paragraphs 66-67
above. Information about the Samaritans is published within the centres
and use is made by detainees of the service that the organization
provides. Both centres are seeking to establish a direct, confidential
telephone link that detainees may use in contacting the local Samaritans
organization.
Articles 12 and 13
90. For convenience,
all matters relating to the discipline of prison staff, police officers
and members of the armed forces and to complaints against them are
dealt with under these articles.
Prison
staff discipline and prisoners' complaints in England and Wales
91. Paragraphs
80, 81 and 97 to 101 of the initial report set out the procedures
for making and investigating complaints against members of the Prison
Service in England, Wales and Scotland. A further development in the
handling of formal complaints from prisoners has been the appointment
of a Prisons Ombudsman by the Government in April 1994. The Prisons
Ombudsman will consider grievances from prisoners, including those
about disciplinary offences, once all internal procedures have been
exhausted. The Ombudsman will rely on powers to make recommendations
to the Prison Service and, where necessary, the Home Secretary. The
remit of the post includes prisons contracted out to the private sector,
contracted-out services within prisons and the actions of those working
in prisons who are not employed by the Prison Service.
92. The Prisons
Ombudsman will examine the merits of individual cases as well as the
operation of procedures. All matters affecting prisoners will be within
the Ombudsman's remit, except for those which are the subject of litigation
or criminal proceedings and for actions of individuals or bodies outside
the Prison Service (e.g. the courts, police, Immigration Service,
Department of Social Security and the Parole Board - but boards of
visitors will be included). The inclusion within the post's remit
of the clinical judgement of prison doctors will, however, be subject
to discussions with the Chief Medical Officer and with medical professional
bodies. Ministers' exercise of their function in considering the release
of mandatory life sentence prisoners will not be within the Prisons
Ombudsman's remit, but the Ombudsman will be able to review related
administrative action by the Prison Service. There will be tight time
limits for all major stages of the Ombudsman's work in dealing with
complaints.
93. The Prisons
Ombudsman will have unfettered access to Prison Service documents,
establishments and individuals. In exceptional cases the Ombudsman
will have to withhold information from complainants and the public
in the interests of national security, or to safeguard particular
security measures, or to protect a third party or to safeguard the
mental or physical health of a prisoner.
94. The Prisons
Ombudsman's office will be independent of Prison Service headquarters.
It will include three assistant ombudsmen, all appointed on contracts,
and nine support staff seconded from the Home Office. The Prisons
Ombudsman will report annually to the Home Secretary and a shorter
version of the report will be published. The appointment of the Ombudsman
will not in any way affect prisoners' rights to approach the Parliamentary
Commissioner for Administration, nor will it restrict their freedom
to pursue complaints in any other way.
95. Paragraph
157 of the initial report noted that all staff working in prisons,
remand centres and young offender institutions are subject to the
criminal law. Were prima facie evidence to exist of a criminal offence
against an inmate's person or property, the police would be invited
to investigate. Conviction for such an offence would normally result
in dismissal, in addition to any penalty imposed by the court.
96. Staff
are also subject to internal disciplinary procedures. These were extensively
revised in July 1993 and the main features are as follows:
(a) A common
standard of conduct has been laid down for all staff working in prison
establishments and at Prison Service Headquarters and Units;
(b) All
staff are liable to face disciplinary proceedings if they fail to
meet that standard; and
(c) The
standard of proof in disciplinary proceedings is the balance of probabilities.
The standard
of conduct, in relation to inmates, requires that all members of staff
must be: "Courteous, reasonable and fair in their dealings with
all inmates ... irrespective of race, religion, gender, disability,
sexual orientation or any other irrelevant factor".
97. The Prison
Service Code of Discipline gives prison governors the power to award
a range of disciplinary penalties, which are primarily designed to
improve the performance of individual members of staff. The penalties
available include warnings, financial restitution, loss of increment,
removal from the field of promotion, downgrading and dismissal. In
the event of a failure to show an improvement, or in cases of further
acts of indiscipline, governors have the power (subject to a right
of appeal) to dismiss members of staff. They may also dismiss staff
for a single act of gross misconduct.
Prison
staff discipline and prisoners' complaints in Scotland
98. Paragraphs
80, 81 and 97 to 101 of the initial report set out the procedures
for making and investigating complaints against members of the Prison
Service in England, Wales and Scotland. In February 1994, the Scottish
Prison Service introduced a new internal complaints system for dealing
with prisoners' requests and complaints. The objectives of the new
procedures are to ensure that:
(a) Requests
and complaints are resolved as close as possible to the source of
the matter at issue;
(b) Those
who take decisions are accountable for them;
(c) Prisoners
receive reasoned responses within a set timescale; and
(d) Accurate
and detailed records are maintained.
99. When
allegations of criminal conduct by prison staff against prisoners
are reported to the Procurator Fiscal, he must investigate the complaint
and arrange for the prisoner to be interviewed. Requests and complaints
are dealt with initially within the prison hall in which the prisoner
is located. Issues which cannot be settled within the hall are referred
to an internal complaints committee. Prisoners have the right to appear
in person before the committee and have the right to seek the assistance
of a member of staff or of an individual connected with the prison,
such as a social worker or a member of the visiting committee of independent
lay persons. Whenever possible, the committee informs the prisoner
at the hearing of its decision. If a decision is not taken at that
time, the prisoner receives a written reply within two days of the
hearing. Prisoners have the opportunity to appeal against the committee's
decision to the governor in charge, who will normally deal with such
appeals within seven days. If, after the governor has given his decision,
the prisoner wishes to take the matter further, he will have the opportunity
to appeal to the Scottish Prisoners Complaints Commissioner.
Prisoners
will be provided with reasoned written decisions at each stage of
the proceedings.
Prisoners
will continue to have access to all the external avenues of complaint
which are available at present.
100. Paragraph
98 of the initial report mentioned that a comprehensive review of
the Prison Rules was being undertaken in Scotland. This has been completed
and the new Rules were laid before Parliament in July 1994 and the
vast majority of the provisions came into force on 1 November 1994.
The new Rules abolish the disciplinary offences of making a false
and malicious allegation against an officer and of repeatedly making
groundless complaints. They also abolish the so-called "simultaneous
ventilation rule", which required prisoners to put forward their
grievances within the internal complaints system at the same time
as any letter of complaint might be written to persons or bodies outside
the prison system.
Prison
staff discipline and prisoners' complaints in Northern Ireland
101. A review
of the Prison Rules in Northern Ireland began in August 1993 and draft
Rules were published for public consultation in April 1994. The consultation
period ended in June 1994 and the Prison and Young Offenders Rules
(Northern Ireland) 1995 will come into force in March 1995. These
rules replace both the Young Offenders Rules (Northern Ireland) 1982
and the Prison Rules (Northern Ireland) 1982 both of which were revoked
from that date. New Standing Orders which give effect to the new Rules
will be introduced in March 1995.
Police
discipline and complaints in England and Wales
102. Paragraphs
141 to 143 and 146 to 152 of the initial report described the procedures
established under the Police and Criminal Evidence Act 1984 for handling
complaints against the police in England and Wales and considering
disciplinary action. These procedures remain in force and the Police
Complaints Authority continues to exercise independent oversight of
individual cases.
103. Detailed
figures of complaints against the police are published each year in
a Home Office Statistical Bulletin and the Annual Report of the Commissioner
of the London Metropolitan Police. Although the number of complaints
made in recent years has shown a slight rise - of 6.5 per cent in
four years, some of which is due to changes in recording practice
- the number of complaints substantiated has remained about the same:
|
1989
|
1990
|
1991
|
1992
|
1993
|
Complaint cases received |
20 956
|
21 284
|
20 688
|
21 733
|
22 327
|
Complaints substantiated |
765
|
847
|
813
|
760
|
756
|
104. As explained in paragraph 152 of the initial report, the action
taken following the completion of the investigation into a police
complaint is subject to review by the Police Complaints Authority,
which may recommend or direct disciplinary action if it considers
this the right course and no such action is proposed by the police
force in question. The table below gives figures taken from the Authority's
annual reports for recent years:
Year |
Complaints a/
|
|
1989 |
9 014 |
193 (54)
|
1990 |
13 679 |
219 (69)
|
1991 |
13 945 |
245 (73)
|
1992 |
13 234 |
252 (56)
|
1993 |
10 907 |
236 (45)
|
a/ This
column gives figures for complaints where the subsequent disciplinary
action proposed was reviewed by the Police Complaints Authority
after the complaints had been fully investigated.
b/ Total
disciplinary charges arising from these complaints. Figures
for PCA recommendations or directions that disciplinary charges
be brought are given in brackets.
105. In 1993,
statistics were collected, for the first time for some years, in which
the number of police officers convicted of a criminal offence was
broken down by offence. Six officers were convicted of violence against
the person (two as a result of a complaint), two being imprisoned.
Two officers were convicted of perjury, one (convicted as a result
of a complaint) being imprisoned. There were no other convictions
of police officers for violence or malpractice.
106. The
Police and Magistrates' Courts Act 1994, which should come into force
towards the end of 1995, makes certain changes to the police disciplinary
procedures. The role of the Police Complaints Authority will remain
largely unchanged under the new procedures, although complaints about
less serious matters (not, for example, involving allegations of assault
or corruption but covering such matters as incivility or poor time-keeping)
will, in future, be dealt with as part of the chief officer's normal
management responsibility for the police force.
107. Serious
misconduct by a police officer towards a member of the public will
usually involve a criminal offence and will continue to be dealt with
as such. The main issue to be resolved in other allegations of misconduct
is whether an officer has acted in a way appropriate to his office.
New disciplinary procedures will concentrate on determining whether
an officer is fit to remain in the police service.
Police
discipline and complaints in Scotland
108. Further
to paragraph 153 of the initial report, in 1993, 364 police discipline
cases were dealt with under the code set out in Schedule 1 to the
Police (Discipline) (Scotland) Regulations 1967; 73 of these proceeded
to a disciplinary hearing, the outcome of which was that 72 officers
were found guilty of a disciplinary offence.
109. Of the
cases that did not proceed to a disciplinary hearing, the majority
resulted in counselling by a senior officer, a number were found to
be unsubstantiated and in some cases the officer resigned before disciplinary
procedures were completed.
110. The
Police and Magistrates' Courts Act 1994 will make changes to police
disciplinary procedures in Scotland similar to those to be made in
England and Wales. It will, however, continue to be the responsibility
of the chief constable of the police force concerned to report any
suspected criminal conduct on the part of one of his officers to the
Procurator Fiscal, who will decide whether proceedings should be taken
against that officer. The Act will also empower inspectors of constabulary
in Scotland to consider representations from complainants dissatisfied
with the way in which the police have handled their complaint and,
where appropriate, to direct the chief officer of the police force
concerned to re-examine the case.
Police
discipline and complaints in Northern Ireland
111. Paragraphs
155 and 156 of the initial report described how the procedures for
handling complaints against the police in Northern Ireland are established
under the Police (Northern Ireland) Order 1987 and how independent
oversight of the complaints and discipline system is exercised by
the Independent Commission for Police Complaints for Northern Ireland.
112. Detailed
figures of complaints against the police are published each year in
the Annual Report of the Chief Constable of the Royal Ulster Constabulary
and in the Annual Report of the Independent Commission for Police
Complaints. There has been an increase of about 10 per cent in the
number of complaints made in recent years, but the number of complaints
substantiated has remained about the same:
|
1989 |
1990 |
1991 |
1992 |
1993 |
Complaints received |
3 989 |
4 132 |
4 364 |
4 663 |
4 455 |
Complaints substantiated |
56 |
61 |
48 |
46 |
42 |
113. The
Independent Commission for Police Complaints must supervise the investigation
of all complaints alleging death or serious injury and may choose
to supervise the investigation of any other complaint. In 1993, the
Commission completed the supervision of 248 cases.
114. The
action taken following the completion of the investigation into a
police complaint is subject to review by the Independent Commission
for Police Complaints, which may recommend or direct disciplinary
action if it considers this the right course and no such action is
proposed by the police. Details of the instances of disciplinary charges
are listed below:
Year
|
Complaints a/
|
Disciplinary charges b/
|
1989
|
803
|
14 (12)
|
1990
|
888
|
29 (14)
|
1991
|
971
|
27 (19)
|
1992
|
1 105
|
39 (27)
|
1993
|
1 209
|
25 (15)
|
a/ This
column gives figures for complaints where the proposed disciplinary
action was reviewed by the ICPC.
b/ Total
disciplinary charges arising from these complaints. Figures
for ICPC recommendations or directions that disciplinary charges
be brought are given in brackets.
115. If,
following the investigation of a complaint, there are allegations
of possible criminal conduct, these are passed to the independent
Director of Public Prosecutions for Northern Ireland, who decides
whether criminal charges should be brought. In 1993, the Director
of Public Prosecutions decided that criminal charges arising out of
complaints should be brought against six RUC officers.
116. A number
of specified cases of alleged ill-treatment were referred to in the
1991 Amnesty International report. A number of these are still undergoing
investigation or are subject to legal proceedings. It is hoped to
provide a full report of each case in the near future.
Military
discipline and complaints in Northern Ireland
117. The
RUC is responsible for maintaining law and order in Northern Ireland.
The armed forces operate in Northern Ireland to support the RUC in
defeating terrorism within the law.
118. Any
complaint against a member of the armed forces alleging criminal behaviour
is investigated by the police and not by the armed forces themselves.
It is the policy of the armed forces to cooperate fully with any such
investigation. In addition, any member of the public has the right
to bring a civil action against a soldier in respect of any alleged
criminal act.
119. Steps
have been taken to make it easier for a member of the public to make
a complaint against a member of the armed forces. A revised leaflet
has been published, which is widely available, setting out how to
make a complaint (a copy is attached at annex E). In addition, each
four-man team of the armed forces operating in support of the police
carries a "patrol identification card", which uniquely identifies
the patrol and is handed to any member of the public who may wish
to make a complaint. This facilitates any subsequent investigation
which may be necessary, whether by the civil police (if the allegation
is criminal) or by the military authorities (if it is non-criminal).
120. In order
to provide an independent audit of the procedures for handling non-criminal
complaints against the armed forces in Northern Ireland, section 60
of and Schedule 6 to the Northern Ireland (Emergency Provisions) Act
1991 provides for the Secretary of State for Northern Ireland to appoint
an Independent Assessor of Military Complaints Procedures in Northern
Ireland; Mr. David Hewitt was appointed by the Secretary of State
in December 1992. The Independent Assessor reviews and makes recommendations
concerning the procedures adopted by the General Officer Commanding
Northern Ireland (the GOC) for receiving, investigating and responding
to relevant complaints. He is obliged to receive and investigate representations
concerning those procedures and may investigate their operation. The
Independent Assessor may also require the GOC to review any particular
case in which he considers any of those procedures to have operated
inadequately and may make recommendations to the GOC concerning such
inadequacies either on a general basis or in relation to a particular
complaint.
121. The
Independent Assessor's first annual report to the Secretary of State
was published in May 1994. In it the Assessor stated his belief that
military complaints procedures in Northern Ireland are as thorough
as any in the world and acknowledged that those procedures have helped
to establish and maintain a good and improving relationship between
the armed forces and the people of Northern Ireland. He also made
a number of suggestions for further improvement; these suggestions
have been examined carefully by the army and all but two of the recommendations
have now been implemented. A copy of the report, which contains full
statistics, is attached at annex F.
Article 14
122. Paragraphs
107 to 120 of the initial report described the statutory and common
law provision in the United Kingdom regarding compensation and damages
for any victim of crime or of a civil wrong and the measures in place
for the rehabilitation of victims. The following supplementary information
is now provided.
Compensation
123. Paragraph
107 of the initial report described the legislation in England and
Wales under which the courts may order convicted offenders to pay
compensation to their victims. The Criminal Justice Act 1991 increased
the maximum amount of compensation which can be ordered on summary
conviction for a single offence from £2,000 to £5,000.
124. Paragraph
109 of the initial report described the provision in Great Britain
of compensation for the victims of crimes of violence, or their dependents,
made under the Criminal Injuries Compensation Scheme. Such compensation
continues to be paid under arrangements which amount to some of the
most generous in the world, awarding more compensation than the rest
of Europe combined and more than the United States, which has a higher
level of crime.
125. A separate
scheme, described in paragraph 110 of the initial report, continues
to operate in Northern Ireland.
Rehabilitation
measures
126. Paragraph
119 of the initial report described the help available to victims
of crime through Victim Support, a voluntary organization which receives
substantial government funding. Victim Support's activities have widened
and there are now some 370 local schemes in England and Wales, which
help more than 900,000 victims a year. Government funding for Victim
Support is £8.4 million in 1993/94 and will be £10 million in 1994/95.
This funding helps to support the organization's national headquarters
and meets the salaries of paid coordinators for the local schemes
and for the recently introduced Crown Court Witness Service. This
service, now established in nearly 40 Crown Court centres in England
and Wales, provides practical and emotional help for witnesses attending
court.
127. There
are also some 70 local victim support schemes in Scotland, which help
more than 40,000 victims a year. Government funding to Victim Support
Scotland in 1994/95 will be £878,000, of which £622,000 will be allocated
to a funding panel, independent of the Scottish Office and of Victim
Support Scotland, which determines applications for grants submitted
by local victim support schemes. The intention is to encourage the
growth of local schemes affiliated to the Scottish Association of
Victim Support Schemes through the provision of grant aid for the
appointment of coordinators or towards running costs.
Article 15
128. Paragraphs
121 to 123 of the initial report described how under statutory and
common law a confession which may have been obtained by oppression
is inadmissible in the United Kingdom as evidence against the person
who made the confession; during the oral examination on the initial
report (CAT/C/SR.92, paras. 13-14) the United Kingdom delegation expanded
on this description and explained how article 15 was applied with
respect to witness statements.
Article 16
129. Matters
relating to the discipline of prison staff, police officers and members
of the armed forces and to complaints against them are dealt with
under articles 12 and 13.
Corporal
punishment
130. The
Education (No. 2) Act 1986 and an Order in Council for Northern Ireland
abolished the use of corporal punishment in all State maintained schools.
The law also exempts from corporal punishment publicly funded pupils
in independent schools.
131. In practice,
very few independent schools now administer corporal punishment, but
the Government is concerned to ensure that, in those which choose
to do so, any punishment does not lead to a contravention of article
16 or of other of the United Kingdom's international obligations.
The Education Act 1993, which came into force on 1 October 1993, therefore
provides that, where corporal punishment is administered to privately
funded pupils in independent schools, the punishment should not be
"inhuman or degrading". The legislation provides that, in
determining whether punishment is inhuman or degrading, regard should
be had to all the circumstances of the case, including the reason
for giving the punishment; how soon after the event it is given; its
nature; the manner and circumstances in which it is given; the persons
involved; and its mental and physical effects on the pupil concerned.
132. In September
1992, the European Court of Human Rights heard the case of Costello-Roberts
v. the United Kingdom, which related to the use of corporal punishment
in an independent school. The Court ruled that the United Kingdom
was not in breach of either article 3 (torture and inhuman or degrading
treatment or punishment) or article 8 (right to privacy) of the European
Convention on Human Rights.
Care and
protection of children
133. As the
United Kingdom delegation described during the oral examination on
the initial report (CAT/C/SR.91, para. 11), the Children Act 1989,
which came into force in October 1991, revised and clarified the law
in England and Wales relating to the care and upbringing of children.
Based on the principle that the welfare of the child must always be
the first consideration in decisions by the courts and by the authorities
responsible for local government, it included new measures to help
protect children from abuse and required the setting up of monitoring
and complaints procedures for residential children's homes.
134. The
working of the 1989 Act is being monitored through a national network
of Family Business and Family Services Committees, which report to
a multi-disciplinary central body, the Children Act Advisory Committee.
The Committee reports annually to the Government on the operation
of the Act and makes recommendations about any changes required. In
addition, the Government is required under the 1989 Act to lay before
Parliament each year information about local authority functions relating
to children, about certain services for children provided by the voluntary
sector.
135. In Scotland,
the Social Work (Scotland) Act 1968 embodies similar principles concerning
the rights of the child to those that apply in England and Wales,
while, in August 1993, the Government published a White Paper, "Scotland's
Children: Proposals for Child Care Policy and Law" (Cm 2286),
from which it is hoped to promote further legislation relating to
children and families. In Northern Ireland, the Government published
a new framework for child-care law for public consultation in 1993
and legislation is expected to be introduced early in 1995 which would
bring together the civil law relating to the care and protection of
children in a single, comprehensive code along the lines of the Children
Act 1989 in England and Wales.
136. Under
the Children Act 1989, local authorities in England and Wales now
have a statutory duty to make enquiries if they receive information
suggesting that a child may need protection or family support services.
A similar duty is placed on local authorities in Scotland by the Social
Work (Scotland) Act 1968, while, in Northern Ireland, health and social
services boards and trusts have a statutory responsibility for the
care and protection of children who may be at risk of abuse.
137. In
October 1991, to coincide with the implementation of the Children
Act 1989, a revised version of the Government's inter-agency child
protection guidance for England and Wales - "Working Together
under the Children Act 1989" - was issued and, in 1992, the Government
published a revised version of professional guidance for nurses and
has also provided practice guidance to social workers involved in
the assessment of child abuse cases and guidance to all doctors on
the diagnosis of child sexual abuse. In Northern Ireland, the government
publication, "Co-operating to Protect Children", provides
guidance on the prevention, detection and management of child abuse.
138. As mentioned
in paragraph 132 of the initial report, in October 1986 the Government
launched a central training initiative in England and Wales for the
training of managers and practitioners in child abuse work. Grants
totalling over £3.5 million have been given to produce child protection
training materials for those in different professional disciplines
and awareness materials for the wider public. The Government has also
funded a survey to establish the nature and range of treatment facilities
for abused children and for young perpetrators of abuse, which informed
the deployment of resources, from 1990, in a centrally funded treatment
initiative. At the end of 1993/94, nearly £1.1 million had been provided
in grants for a range of child abuse treatment projects. In addition,
as part of the Government's overall child care research programme,
there is in place an extensive range of research projects in relation
to child abuse. In Northern Ireland, a special training initiative,
launched in September 1988 for health and social services boards staff
involved in dealing with child abuse, provides funds of £100,000 a
year.
139. Further
to paragraph 133 of the initial report, at local level, each local
authority social services department in England and Wales holds a
central register which lists all the children in the area who are
considered to be at risk of abuse and who are therefore currently
the subject of an inter-agency plan to protect them. (Registration
takes place as a result of a child protection conference, which decides
whether a child is at risk of abuse and whether the child's name should
be placed on the register. If the child's name is placed on the register,
the conference also draws up an inter-agency plan to protect the child.)
Since 1989 the Government has produced an annual statistical publication
on children and young people on child protection registers in England
containing both national and local information. Similar arrangements
are in place in Wales, Scotland and Northern Ireland.
Residential
care for children
140. Paragraph
159 of the initial report described how all residential care for children
in England and Wales is subject to inspection by Social Services.
New regulations and guidance on the management of children's homes,
emphasizing the need to promote the welfare of the child and guard
against ill-treatment, have been issued in accordance with the Children
Act 1989. Such homes are required to have a publicized complaints
procedure with an independent element and to which children can have
access in their own right. Children must also have access to a pay
telephone which they can use to make and receive telephone calls in
private.
141. In April
1993, the Government issued guidance to local authorities on the permissible
forms of control in children's residential care; this makes clear
the circumstances in which it is appropriate to use physical restraint
in order to protect a child from himself or others or from causing
serious damage to property. It is the Government's policy that corporal
punishment has no place in the child-care setting, whether in children's
homes, day care facilities or foster placements. Because of the particular
vulnerability of children in residential care, more extensive and
detailed regulations and guidance concerning control and discipline
apply; only such disciplinary measures as are approved by the responsible
authority may be used and detailed records must be kept of any punishment
administered.
142. A sum
of £4.5 million is being made available in 1994/95 for a special residential
child-care initiative, which started in 1992 and which is aimed at
assisting local authorities to ensure that all children's homes are
managed by professionally qualified staff. A further £11.4 million
is available under the Training Support Programme in 1994/95 for all
local authority staff working with children, in residential care and
in the community. This programme aims to improve the quality of social
services provision by increasing the availability of training for
relevant staff. For both these initiatives, local authorities are
required to contribute at least 30 per cent of expenditure themselves.
143. All
residential care for children in Scotland is subject to local authority
registration and inspection, while, in Northern Ireland, where the
health and social services boards have a responsibility to provide
residential accommodation for children taken into their care, such
accommodation is subject to inspection by the Social Services Inspectorate.
Secure
accommodation for children
144. The
primary legislation governing the provision and use in the United
Kingdom of secure accommodation for children is contained in the Children
Act 1989; the Social Work (Scotland) Act 1968 and the Criminal Procedure
(Scotland) Act 1975; and the Children and Young Persons Act (Northern
Ireland) 1968. All secure accommodation is subject to Government approval
and to independent inspection, which reports on the quality of care
provided and the condition of the premises.
Part Two
CROWN DEPENDENCIES: GUERNSEY, JERSEY AND THE ISLE OF MAN
Guernsey
I. INFORMATION OF A GENERAL NATURE
145. Guernsey
is an internally self-governing dependency of the Crown with a population
of approximately 59,000. The United Kingdom Government is directly
responsible for its international relations and defence and the Crown
is ultimately responsible for its good government. The criminal law
of Guernsey is generally similar to that of England and Wales.
146. The
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment was ratified by the United Kingdom on behalf of Guernsey,
and took effect in respect of Guernsey, pursuant to article 27, on
8 December 1992.
147. Section
134 of the Criminal Justice Act 1988, which came into force in the
United Kingdom on 29 September 1988, made it an offence to torture
a person in the circumstances there described. The Administration
of Justice (Bailiwick of Guernsey) Law, 1991, which took effect on
20 March 1991, contains similar provisions, and therefore made it
possible for the Convention to be ratified on Guernsey's behalf.
148. The
International Covenant on Civil and Political Rights has been in force
in respect of Guernsey since 29 August 1976. Article 7 of the Covenant
provides that "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment".
149. The
European Convention on Human Rights has been in force in respect of
Guernsey since 23 October 1953. By successive declarations, the United
Kingdom has accepted in respect of Guernsey the right of individual
petition under article 25 and the jurisdiction of the European Court
of Human Rights under article 46 of that Convention.
150. It is
also an offence under section 1 of the Geneva Conventions Act 1957
to commit a grave breach of any of the four Geneva Conventions governing
armed conflict. One such grave breach is torture of a protected person
or the subjection of that person to inhuman treatment. By virtue of
the Geneva Conventions Act (Guernsey) Order 1966, that Act was extended
to Guernsey.
151. These
matters are, as appropriate, dealt with more fully where they arise
in part II of this report.
II. INFORMATION RELATING TO ARTICLES 2 TO 16
OF THE CONVENTION
Article 2
152. Under
the law in force in Guernsey, conduct constituting torture would involve
a number of possible serious offences. Such conduct would be an offence
under the Administration of Justice (Bailiwick of Guernsey) Law, 1991.
It might also amount to murder, attempted murder or a serious offence
of violence.
153. A grave
breach of any of the Geneva Conventions of 12 August 1949 amounting
to torture is also a serious offence under Guernsey law.
154. Assaults
on the person are also actionable under the civil law of Guernsey.
No exceptional circumstances or any superior orders may under the
law in force in Guernsey be invoked to justify torture.
155. Guernsey
is also bound by article 7 of the International Covenant on Civil
and Political Rights and article 3 of the European Convention on Human
Rights and Fundamental Freedoms, both of which proscribe torture and
other forms of ill-treatment.
Article 3
156. The
extradition laws of the United Kingdom are extended to Guernsey under
the Extradition Act 1989. The law is generally the same as in the
United Kingdom and there are adequate powers to extradite alleged
torturers. In addition, the authorities concerned would have discretion
not to expel, return or extradite a person to another State in a case
where substantial grounds were advanced for believing that person
would be in danger of being subjected to torture. The discretion would
be exercised in accordance with the requirements of this article.
Article 4
157. As indicated
above, acts constituting torture as defined in the Convention are
offences under the Administration of Justice (Bailiwick of Guernsey)
Law, 1991, and such acts may also constitute other serious offences.
It is immaterial whether the pain or suffering is physical or mental
and whether it is caused by an act or an omission. The offence is
punishable by imprisonment for life. Grave breaches of the Geneva
Conventions carry with them a maximum penalty of 14 years' imprisonment
unless the conduct involves killing, in which case the maximum penalty
is life imprisonment.
158. An attempt
to commit a statutory or common law offence is also an offence under
the common law. A person convicted of an attempt to commit an offence
would be liable to a penalty no more severe than that to which he
could be sentenced for the completed offence, as would a person who
aids, abets, counsels or procures the commission of an offence.
159. There
is no statutory offence of conspiracy in Guernsey, but common law
charges of conspiracy may be brought in respect of an agreement between
two or more persons to commit an offence.
Article 5
160. Under
the Administration of Justice (Bailiwick of Guernsey) Law 1991, the
offence of torture is committed whether the conduct takes place in
Guernsey or elsewhere and irrespective of the nationality of the offender
or victim. Section 1 of the Geneva Conventions Act 1957, as extended
to Guernsey, makes similar provisions as regards grave breaches of
the Geneva Conventions of 12 August 1949, which include torture and
inhuman treatment.
Articles 6 and 7
161. Guernsey
has not enacted legislation parallel to the Police and Criminal Evidence
Act (PACE) 1984. However, sections 88 and 89 of the Prison Administration
(Guernsey) Ordinance 1959 provide that an untried prisoner who is
detained in the States Prison having been charged by an officer of
the police of or above the rank of sergeant, shall be released from
custody if within 72 hours of his reception at the prison he had not
been brought before any court. Secondly, the Customs and Excise (General
Provisions) (Bailiwick of Guernsey) Law 1972 (as amended by the Law
of 1991 of the same title) makes specific provision to empower customs
officers to search persons where there are reasonable grounds to suspect
that a person arriving or leaving the Island is carrying any articles
for which duty has not been paid or with respect to which their importation
or exportation is prohibited (e.g. drugs). The provisions are contained
in section 72 and provide the suspect with the right, if he is to
be subjected to a strip or intimate search, to require that any authorization
thereof is made by a jurat of the Royal Court or a superior officer
and all such searches must be carried out by a person of the same
sex as the suspect. Many of the PACE 1984 provisions are nevertheless
observed as a matter of administrative practice. There are codes of
practice in force, administered by the police, prison officers and
social workers relating to the detention of persons (adult or juvenile)
before charge, or before being brought before a court, or in prison
or a secure unit. These codes, whilst stipulating that reasonable
force may be used to secure compliance with reasonable instructions,
or to prevent escape, injury, damage to property or the destruction
of evidence, nevertheless lay down strict procedures to be followed
when force has to be used. Strip or intimate searches are only permitted
in accordance with clear criteria which have to be strictly followed
and recorded, and in all cases provision is made for appropriate medical
personnel to be present. There are procedures for the investigation
of complaints against police and prison officers. The Judges' Rules,
which applied in England prior to the enactment of PACE, still operate
in Guernsey and, in particular, an accused person may not generally
be questioned by the police after he has been charged.
Article 8
162. Effect
is given to this article under the extradition laws of the United
Kingdom as applying to Guernsey. Section 136 of the Criminal Justice
Act 1988, the effect of which is preserved by section 38 (4) of the
Extradition Act 1989, ensures that in existing arrangements with a
State also party to the Convention, a person is extraditable where
the offence for which he is wanted is an offence of torture contrary
to section 134 of the 1988 Act.
163. Parts
I to V of the Extradition Act 1989 apply to Guernsey by virtue of
section 29 of that Act and make provision for the extradition from
Guernsey of a person accused of an offence of torture contrary to
section 134 of the Criminal Justice Act 1988, or of an attempt to
commit such an offence, in the case of States parties to the Convention.
164. Section
22 (6) of the Extradition Act 1989 and paragraph 15 of Schedule 1
to that Act re-enact section 136 (2) of the Criminal Justice Act 1988,
which provided that any act or omission, wherever committed, which
constitutes torture, and a corresponding offence against the law of
any State with which an extradition treaty has been concluded, shall
be deemed to be an offence committed within the jurisdiction of that
State.
Article 9
165. Section
5 of the Extradition Act 1873 applies directly to Guernsey and, in
addition, section 5 of the Evidence (Proceedings in Other Jurisdictions)
Act 1975 has been extended to the Island. Consideration is being given
to the question of the ratification of the European Convention on
Mutual Assistance in Criminal Matters and the enactment of legislation
paralleling the Criminal Justice (International Cooperation) Act 1990.
Article 10
166. The
position in Guernsey is similar to that in the United Kingdom. Training
programmes for law enforcement personnel and other persons involved
in the custody, questioning or treatment of any individual subject
to any form of arrest, detention or imprisonment emphasize the need
to treat everyone as an individual and with humanity and respect,
and to act within the law at all times. Such persons may also be subject
to internal disciplinary codes, as well as to legal proceedings, if
they use any unnecessary violence against any prisoner or other person
with whom they may be brought into contact in the execution of their
duty.
Article 11
167. The
position in Guernsey is analogous to that in Scotland in that the
powers available to the police are established primarily in common
law. In Guernsey all criminal charges are brought in the name of the
law officers of the Crown and there is no right for any other persons
to lay criminal charges. Both the police and HM Customs use tape recordings
of interviews.
Article 12
168. Subject
to the directions of the law officers, as explained in paragraph 167
above, the police have a duty to investigate any alleged offence impartially,
quickly and effectively. The day-to-day management of Guernsey's modern
prison, Les Nicolles, is in the hands of a professionally trained
governor, who is answerable at the political level to the Committee
for Home Affairs. As a matter of practice, the prison governor reports
any criminal offence, other than an offence under prison discipline,
to the police or the law officers for investigation. There are also
procedures for the investigation of complaints against prison officers.
169. Guernsey's
legislation relating to mental health rests on the Mental Treatment
Law (Guernsey), 1939, which is currently under review. It is likely
that it will be replaced by legislation similar to the Mental Health
Act 1983 in force in England and Wales.
Article 13
170. The
right of an individual to complain of having been subjected to torture,
and to have his case promptly and impartially examined, as required
by the first sentence of this article, is secured by the law of Guernsey.
Steps would be taken, under the law, to ensure protection of the complainant
and witnesses.
171. Procedures
exist for dealing with complaints, both by prisoners and mental patients.
Article 14
172. The
Criminal Justice (Compensation) (Bailiwick of Guernsey) Law 1990 provides
for the court, on conviction of a person for an offence involving
physical injury to the victim, to order compensation to be paid. In
addition, victims of crimes of violence are entitled to pursue civil
law for damages in tort.
Article 15
173. The
Judges' Rules, to which paragraph 157 above refers, would preclude
the admission in criminal proceedings of a statement extracted by
torture or other oppressive means.
Article 16
174. Although
the sentence of corporal punishment is still on the statute book for
certain offences, it has not been passed since the judgement of the
European Court of Human Rights in the case of Tyrer. The Royal
Court has officially stated that the sentence of corporal punishment
will not, at any time in the future, be imposed by the Island courts.
No corporal punishment takes place in the Island's schools or in the
Government's places of care for juveniles.
175. The
Children Board of the States of Guernsey has a mandate to protect
children from abuse. Powers exist under the Children and Young Persons
(Guernsey) Law 1967, as amended, for children to be taken to places
of safety and put into the care of the Board or other fit person by
order of the Court.
Jersey
I. INFORMATION OF A GENERAL NATURE
176. The
Convention was extended to Jersey in 1992.
177. The
Torture (Jersey) Law, 1990, which was enacted to enable the Convention
to be ratified on Jersey's behalf, makes it an offence to torture
a person in the circumstances there described.
178. The
ratification by the United Kingdom of the International Covenant on
Civil and Political Rights included Jersey. Article 7 of the Covenant
provides that "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment".
179. The
European Convention for the Prevention of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment was ratified by the United
Kingdom on 24 June 1988 on behalf of Jersey, and came into force on
1 February 1989.
180. Article
3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, to which Jersey is a party, also proscribes
such conduct. By successive declarations, the United Kingdom has accepted
in respect of Jersey the right of individual petition under article
25, and the jurisdiction of the European Court of Human Rights under
article 46 of that Convention.
181. The
Geneva Conventions Act, 1957 of the United Kingdom was extended to
Jersey by the Geneva Conventions Act (Jersey) Order, 1966.
182. It is
also an offence in Jersey, under the common law, to assault a person.
An assault also gives rise to a breach of the civil law and can found
a civil action. The conduct prohibited by the criminal or the civil
law includes conduct falling short of torture but which may amount
to cruel, inhuman or degrading treatment or punishment.
183. The
law also ensures that a confession made by an accused person may not
be given in evidence against him if it was obtained by oppression.
184. These
matters are, as appropriate, dealt with more fully as they arise in
part II of this report.
II. INFORMATION RELATING TO ARTICLES 2 TO 16
OF THE CONVENTION
Article 2
185. The
Torture (Jersey) Law, 1990 created a new criminal offence of torture,
being the intentional infliction on another of severe mental or physical
suffering by a public official or someone acting as such or at the
instigation, or with the consent or acquiescence, of a public official.
Such conduct might also amount to an assault under the common law.
186. A grave
breach of any of the Geneva Conventions of 12 August 1949 amounting
to torture is also a serious offence under the law of Jersey.
187. Assaults
on the person are also actionable under the civil law of Jersey.
188. Jersey
is bound by article 7 of the International Covenant on Civil and Political
Rights and article 3 of the European Convention on Human Rights and
Fundamental Freedoms, both of which proscribe torture and other forms
of ill-treatment. These are among the articles from which it is not
possible to derogate under article 4 of the Covenant or article 15
of the Convention.
189. No exceptional
circumstances nor any superior orders may, under the law in force
in Jersey, be invoked to justify torture.
Article 3
190. Under
the extradition laws of the United Kingdom, as extended to Jersey,
the authorities would have discretion not to expel, return or extradite
a person to another State in a case where substantial grounds were
advanced for believing that he would be in danger of being subjected
to torture; and it is to be expected that the discretion would be
exercised in accordance with the requirements of this article.
Article 4
191. As indicated
above, acts constituting torture as defined in the Convention are
offences under the Torture (Jersey) Law, 1990, and such acts may also
constitute other serious offences. It is immaterial whether the pain
and suffering is physical or mental and whether it is caused by an
act or an omission. The offence is punishable by imprisonment for
life. Grave breaches of the Geneva Conventions carry with them a maximum
penalty of 14 years' imprisonment unless the conduct involves killing,
in which case the maximum penalty is life imprisonment.
192. An attempt
to commit a statutory or common law offence is itself an offence under
the common law. A person convicted of an attempt to commit an offence
would be liable to a penalty no more severe than that to which he
could be sentenced for the completed offence, as would a person who
aids, abets, counsels or procures the commission of an offence.
193. There
is no statutory offence of conspiracy in Jersey, but common law charges
of conspiracy may be brought in respect of an agreement between two
or more persons to commit an offence.
Article 5
194. Under
article 1 of the Torture (Jersey) Law, 1990, the offence of torture
is committed whether the conduct takes place in Jersey or elsewhere
and irrespective of the nationality of the offender or the victim.
Section 1 of the Geneva Conventions Act, 1957, as extended to Jersey,
makes similar provision as regards grave breaches of the Geneva Conventions
of 12 August 1949, which include torture and inhuman treatment.
Article 6
195. Where
a person who is present in Jersey is alleged to have committed torture,
to have attempted to commit torture or to be guilty of complicity
or participation in torture, the police, as the responsible authority
in Jersey for the prevention and detection of crime, would, on the
matter coming to their attention, carry out an investigation into
the facts.
196. Where
a person present in Jersey is suspected of having committed one of
the relevant offences, steps available under the ordinary criminal
law of Jersey would be taken to bring him into custody or otherwise
ensure his presence for such time as is necessary to enable criminal
or extradition proceedings to be brought. In practice, given the seriousness
of the offences, he is likely to be taken into custody.
197. There
has been no known instance of a case falling within paragraphs 3 or
4 of article 6 in Jersey, and no standing arrangement in relation
to either paragraph has been thought to be necessary. If any such
case were to occur, regard would be had to the requirements of the
paragraph concerned.
Article 7
198. The
long-standing practice of the relevant authorities in Jersey as regards
the investigation of alleged criminal offences and the consideration
of prosecution for such offences meets the requirements of this article.
Proceedings for an offence under the Torture (Jersey) Law, 1990, cannot
be begun except by, or with the consent of, the Attorney General.
Article 8
199. The
requirements of this article are met by the Extradition Act, 1989
of the United Kingdom, section 28 (1) of which provides that parts
I to V of that Act shall extend to Jersey and shall have effect as
if Jersey were part of the United Kingdom.
Article 9
200. Assistance
of the kind required by this article could be provided under the United
Kingdom's extradition legislation which extends to Jersey, and the
Evidence (Proceedings in Other Jurisdictions) (Jersey) Order, 1983,
made in exercise of the power conferred by section 10 (3) of the Evidence
(Proceedings in Other Jurisdictions) Act, 1975 of the United Kingdom
to extend the provisions of that Act to Jersey.
Article 10
201. All
training programmes for law enforcement personnel and other persons
involved in the custody, questioning or treatment of any individual
subject to any form of arrest, detention or imprisonment emphasize
the need to treat everyone as an individual and with humanity and
respect, and to act within the law at all times.
202. The
Police Force (General Provisions) (Jersey) Order, 1974 sets out a
Code of Discipline for police officers and prescribes sanctions for
the breach thereof. The Code would certainly cover acts which are
proscribed by the Convention.
203. The
Prison (Jersey) Rules, 1957, as amended, apply equally strict rules
to prison officers in their treatment of, and conduct towards, prisoners.
Article 11
204. The
interrogation rules, instructions, methods and practices, as well
as arrangements for the custody and treatment of persons subjected
to any form of arrest, detention or imprisonment, are reviewed as
necessary in Jersey, where there has been no known instance of torture
or any associated practice.
205. The
Judges' Rules formerly in force in England and Wales continue to be
applied in Jersey. These set out rules for the questioning of suspects
by the police and for the cautioning of such suspects. It is likely
that case-law decisions arising from the application of the Codes
of Practice under the Police and Criminal Evidence Act, 1984 of the
United Kingdom, which superseded the Judges' Rules in England and
Wales, would be regarded by the Jersey courts as having persuasive
authority in circumstances similar to those envisaged by the Judges'
Rules or, where appropriate, in circumstances as to which those Rules
are silent.
Article 12
206. The
police are under a general duty to carry out, quickly and effectively,
an impartial investigation of any alleged offence.
207. Under
the Prison (Board of Visitors) (Jersey) Regulations, 1957, there is
constituted a Board of Visitors whose duties are to pay frequent visits
to the prison, investigate abuses, and report as necessary to the
States of Jersey or the Prison Board.
Article 13
208. The
right of an individual to complain of having been subjected to torture,
and to have his case promptly and impartially examined, as required
by the first sentence of this article, would be secured by the general
law of Jersey. Steps would also be taken under the general law to
ensure the protection of the complainant and witnesses.
209. Rule
40 of the Prison (Jersey) Rules, 1957, as amended, requires that every
request by a prisoner to see the governor or a member of the Prison
Board or a member of the Board of Visitors shall be recorded by the
officer to whom it is made, and conveyed without delay to the governor.
The governor must hear the applications of all prisoners who have
made a request to see him, and must inform the next member of the
Prison Board or member of the Board of Visitors who visits the prison
of every request by a prisoner to see such members.
Article 14
210. Acts
which would constitute torture, within the meaning of article 1 of
the Convention, would constitute civil wrongs for which remedies would
be available in civil proceedings. In such proceedings compensation
for the pain and suffering and any other damage caused would be available,
including exemplary damages where appropriate. Were a victim of torture
to die as a result of his treatment, his dependants would be able
to claim in respect of his death by virtue of the Fatal Accidents
(Jersey) Law, 1962. Legal aid would be available to any claimant.
Article 15
211. By virtue
of the Judges' Rules and the common law, no statement established
as having been made as a result of torture or other form of coercion
would be admissible as evidence in any proceedings, except against
a person of torture as evidence that the statement was made.
Article 16
212. As indicated
in part I above, acts of ill-treatment of the kind described in this
article are proscribed, for example, by article 7 of the International
Covenant on Civil and Political Rights and article 3 of the European
Convention on Human Rights, both of which have been accepted by Jersey.
213. Some
instances of ill-treatment covered by this article would amount to
a criminal offence under the common law. Additionally, or alternatively,
the ill-treatment concerned could found the basis of an action at
civil law.
214. Any
instance of cruel, inhuman or degrading treatment or punishment committed
by, at the instigation of, or with the consent or acquiescence of
any public official or anyone acting in an official capacity would
be wholly condemned and attended by appropriate criminal and disciplinary
sanctions.
Isle of Man
I. INFORMATION OF A GENERAL NATURE
215. The
Isle of Man is an island with a population of approximately 70,000.
It is a Crown Dependency and a peaceful, law-abiding island with a
long tradition of democracy. In fact and law the Isle of Man has almost
complete autonomy.
216. The
United Kingdom ratified the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment on behalf of the Isle
of Man, among other territories, and the Convention took effect for
the Isle of Man, pursuant to article 27, on 8 December 1992.
217. The
European Convention on Human Rights has been in force for the Isle
of Man since September 1967. The United Kingdom currently accepts,
in respect of the Isle of Man, the right of individual petition under
article 25 of the European Convention on Human Rights and the jurisdiction
of the European Court of Human Rights under article 46 of that Convention.
218. Conventions
do not have direct legal effect as part of the law of the Isle of
Man and there is no written constitution guaranteeing rights. However
it is a principle of the Manx law that rights are inherent unless
denied by law.
219. Section
134 of the Criminal Justice Act 1988 (an Act of Parliament), which
came into force on 29 September 1988, made it an offence to torture
a person in the circumstances there described. Sections 34 and 135
of that Act, modified as in the Criminal Justice Act 1988 (Torture)
(Isle of Man) Order 1989 were extended to the Isle of Man by that
Order, which came into force on 13 July 1989 for the express purpose
of ensuring compliance with the Convention.
220. It is
also an offence under section 1 of the Geneva Conventions Act 1957
(an Act of Parliament) to commit a grave breach of any of the four
Geneva Conventions governing armed conflict. One such grave breach
is torture of a protected person or the subjection of him to inhuman
treatment. By virtue of the Geneva Conventions Act (Isle of Man) Order
1970, that Act extends, with specified exceptions, to the Isle of
Man.
221. It is
the policy of the Isle of Man government, as approved by the parliament
(Tynwald), to provide a safe and secure environment in which people
can reside and go about their business and which can be enjoyed by
visitors to the island and to ensure that adequate custodial facilities
are available for persons who have been deprived of their liberty
by the courts and to provide advice and supervision for offenders.
It is a further approved policy that the Department of Home Affairs
should keep in custody those committed by the courts and look after
them with humanity and offer help to them to lead law-abiding lives
after release.
222. It has
long been an offence under Manx law to assault a person. There are
varying degrees of assault - common assault, assault occasioning actual
bodily harm and assault occasioning grievous bodily harm. The only
justification in law for assault is that the person carrying out the
assault was acting in self-defence. Recourse to torture would, in
most circumstances, involve the committing of assault or other, more
serious, offences - for example, murder or attempted murder. An assault
also gives rise to a breach of the civil law and can found a civil
action. The conduct prohibited by the criminal or the civil law includes
conduct which may fall short of torture but which may amount to cruel,
inhuman or degrading treatment or punishment.
223. The
law also ensures that a confession made by an accused person may not
be given in evidence against him if it was obtained by oppression.
224. These
matters are, as appropriate, dealt with more fully where they arise
in part II of this report.
II. INFORMATION RELATING TO ARTICLES 2 TO 16
OF THE CONVENTION
Article 2
225. Under
the law in force in the Isle of Man, conduct constituting torture
as defined in article 1 of the Convention would involve a number of
possible serious offences. It would be an offence under section 134
of the Criminal Justice Act 1988 (an Act of Parliament) as modified
and extended to the Isle of Man. It might also involve the committing
of murder or some lesser offence under domestic legislation - for
example, unlawfully and maliciously wounding or inflicting any grievous
bodily harm contrary to section 35 of the Criminal Code 1872 (an Act
of Tynwald) or maliciously administering any poison or other destructive
or noxious thing, contrary to section 38 of the Criminal Code 1872
(an Act of Tynwald).
226. As
indicated in paragraph 220, a grave breach of any of the Geneva Conventions
amounting to torture is also a serious offence under the law of the
Isle of Man.
227. Assaults
on the person are also actionable under the civil law of the Isle
of Man.
228. Article
3 of the European Convention on Human Rights, which proscribes torture
and other forms of ill-treatment, is among the articles from which
it is not permissible to derogate under article 15 of that Convention.
229. No exceptional
circumstances nor any superior orders may under the law in force in
the Isle of Man be invoked to justify torture.
Article 3
230. The
extradition laws of the United Kingdom are extended to the Isle of
Man. The law is generally the same as in the United Kingdom and there
are adequate powers to extradite alleged torturers. In addition, the
authorities concerned would have discretion not to expel, return or
extradite a person to another State in a case where substantial grounds
were advanced for believing that he would be in danger of being subjected
to torture. The discretion would be exercised in accordance with the
requirements of this article.
Article 4
231. As indicated
above, acts constituting torture are offences under section 134 of
the Criminal Justice Act 1988 (an Act of Parliament) as modified and
extended to the Isle of Man, and torture may constitute other serious
offences as well. Torture contrary to section 134 carries a maximum
of life imprisonment. Grave breaches of the Geneva Conventions carry
with them a maximum of 14 years' imprisonment, unless the conduct
involves killing, in which case the maximum penalty is life imprisonment.
232. Where
it is not specifically made an offence by legislation (as, for example,
is attempt to murder by section 27 of the Criminal Code 1872 (an Act
of Tynwald)), an attempt to commit any of the relevant offences would
itself amount to an offence under section 9 of the Criminal Law Act
1981 (an Act of Tynwald). A person convicted of an attempt to commit
an offence would be liable to a penalty no more severe than that to
which he could be sentenced for the completed offence. Similarly,
any person who becomes an accessory before the fact to any felony
or who counsels, procures or causes any other person to commit any
felony may be tried, prosecuted and punished in the same manner as
a principal offender.
Article 5
233. The
provisions of section 134 of the Criminal Justice Act 1988 (an Act
of Parliament) as modified and extended to the Isle of Man apply by
their terms to acts of the proscribed kinds whether "in the Territory
or elsewhere" and to a person falling within either subsection
(1) or subsection (2) "whatever his nationality".
Article 6
234. Where
a person who is present in the Isle of Man is alleged to have committed
torture, to have attempted to commit torture or to be guilty of complicity
or participation in torture, the police, as the responsible authority
in the Isle of Man for the prevention and detection of crime, would,
on the matter coming to their attention, carry out an investigation
into the facts.
235. Where
such a person is suspected of having committed one of the relevant
offences, steps available under the ordinary criminal law of the Isle
of Man would be taken to bring him into custody or otherwise ensure
his presence for such time as is necessary to enable criminal or extradition
proceedings to be brought. In practice, given the seriousness of the
offences, he is likely to be taken into custody.
236. No case
falling within paragraphs 3 or 4 of article 6 has occurred in the
Isle of Man since the entry into force of the Convention for the island
and no standing arrangement in relation to either paragraph has been
thought to be necessary. If any such case were to occur, regard would
be had to the requirements of the paragraph concerned.
Article 7
237. The
practice and law in the Isle of Man as regards the investigation of
alleged criminal offences and the consideration of prosecution for
such offences conform to the requirements of this article. The legal
system of the island ensures that a person charged with a criminal
offence shall be afforded a fair hearing within a reasonable time
by an independent and impartial court established by law.
Article 8
238. Effect
would be given to this article under the extradition laws of the United
Kingdom as applying in the Isle of Man. Section 136 of the Criminal
Justice Act 1988 (an Act of Parliament), the effect of which is preserved
by section 38 (4) of the Extradition Act 1989 (an Act of Parliament),
ensures that in existing arrangements with a State also party to the
Convention, a person is extraditable where the offence for which he
is wanted is torture contrary to section 134 of the 1988 Act.
239. Parts
1 to 5 of the Extradition Act 1989 (an Act of Parliament) apply to
the Isle of Man by virtue of section 29 of that Act and make provision
for the extradition from the Isle of Man of persons accused of torture
contrary to section 134 of the Criminal Justice Act 1988 (an Act of
Parliament), and an attempt to commit such an offence in the case
of States parties to the Convention.
240. Section
22 (6) of the Extradition Act 1989 (an Act of Parliament) and paragraph
15 of Schedule 1 to that Act re-enact section 136 (2) of the Criminal
Justice Act 1988 (an Act of Parliament), which provided that any act
or omission, wherever committed, which constitutes torture, and a
corresponding offence against the law of any State with which an extradition
treaty has been concluded, shall be deemed to be an offence committed
within the jurisdiction of that State.
Article 9
241. Assistance
of the kind required by this article could, in extradition cases,
be provided in accordance with applicable extraditional laws. In addition,
legislation of the same effect as the United Kingdom Criminal Justice
(International Co-operation) Act 1990 has been in force since 1991.
Article 10
242. The
prohibition against torture is well understood by police, prison officers,
medical personnel, public officials and others who may be involved
in the custody, interrogation or treatment of an individual subjected
to any form of arrest, detention or imprisonment. Such persons are
aware of the need to treat everyone with humanity and respect and
to act within the law at all times. Such persons may also be subject
to internal disciplinary codes, as well as to legal proceedings, if
they use any unnecessary violence against any prisoner or other person
with whom they may be brought into contact in the execution of their
duty.
Article 11
243. The
interrogation rules, instructions, methods and practices, as well
as arrangements for the custody and treatment of persons subjected
to any form of arrest, detention or imprisonment, are reviewed as
necessary in the circumstances of the Isle of Man. The Prison Rules
in the Isle of Man require that remand prisoners be held separately
from convicted prisoners. There has been no known instance of torture
or any associated practice.
244. The
directions to the police known as the Judges' Rules as they applied
in the United Kingdom prior to the enactment of the Police and Criminal
Evidence Act 1984 (an Act of Parliament) are applied in the Isle of
Man. These rules contain administrative directives to the police as
to the questioning of suspects and persons in police custody. Failure
to comply with the Judges' Rules can result in any evidence obtained
thereby being rendered inadmissible in any subsequent criminal proceedings.
In addition the police in the Isle of Man adopt procedures which are
based on the Codes of Practice made under that Act dealing with the
detention, treatment and questioning of persons. English cases on
the 1984 Act and the Codes under that Act are likely to be regarded
as highly persuasive by the Manx courts.
245. The
Isle of Man has an independent Commissioner, currently a former High
Court Judge, to supervise the investigation of complaints against
the police. This is a statutory appointment with appropriate legal
powers.
Article 12
246. The
police are under a general duty to carry out, quickly and effectively,
an impartial investigation of any alleged offence.
Article 13
247. The
right of an individual who claims that he has been subjected to torture
to complain, and to have his case promptly and impartially examined,
as required by the first sentence of this article, is secured by the
law of the Isle of Man. Steps would also be taken, under the law,
to ensure protection of the complainant and witnesses.
248. The
Isle of Man has a legal aid scheme, established by statute, which
is entirely funded out of public funds. It provides legal aid in criminal
and civil cases on a similar basis to the schemes operating in the
United Kingdom.
249. There
are also special provisions for the handling of complaints in particular
cases. The Prison Rules 1984, made under the Prison Act 1965 (an Act
of Tynwald), provide for the constitution of a visiting committee
which is required to satisfy itself as to the state of the prison
premises and the treatment of the prisoners. In particular, the committee,
or any member, is empowered to hear any complaint which a prisoner
wishes to make. The committee is required to direct the attention
of the prison governor to any matter which calls for his attention
and inform the Department of Home Affairs immediately of any abuse
which comes to its knowledge.
Article 14
250. Acts
which constitute torture within the meaning of article 1 of the Convention
constitute civil wrongs for which civil remedies are available in
civil proceedings. In such proceedings, compensation for the pain
and suffering and any other damage caused would be available, including
exemplary damages where appropriate. Such proceedings stem from the
civil law. Were a victim to die as a result of his treatment, his
estate and/or his dependents would be able to undertake civil proceedings
and seek damages in respect of his death under the Law Reform (Miscellaneous
Provisions) Act 1938 and the Fatal Accidents Act 1981 (both being
Acts of Tynwald).
251. The
government agencies in the Isle of Man can be sued and statute provides
special arrangements for proceedings in respect of the acts of officials
who are Crown servants.
252. There
are provisions in Acts of Tynwald which enable criminal courts to
award compensation to victims. The Isle of Man has a criminal injuries
scheme which is based on the scheme operating in the United Kingdom.
Article 15
253. The
common law rule of evidence applies so that admissions obtained as
a result of torture or other oppressive means would not be admissible.
Article 16
254. As explained
in part I above, other international obligations which apply to the
Isle of Man - notably, those of article 3 of the European Convention
on Human Rights - already required the prevention of acts of the kind
described in this article. The Government of the Isle of Man, which
would view with grave concern any instance of unlawful ill-treatment
committed by or at the instigation of or with the consent of a public
officer or other person in an official capacity, does not consider
that any change in existing law or practice is necessary for the fulfilment
of those obligations.
255. Some
instances of ill-treatment covered by this article would amount to
a criminal offence under the law of the Isle of Man. The ill-treatment
concerned could also provide a basis for civil proceedings.
Part Three
DEPENDENT TERRITORIES
Introduction
256. This
report constitutes the second periodic report of the United Kingdom
under article 19 of the Convention in respect of its dependent territories
overseas to which the Convention applies and which have already been
the subject of an initial report, that is to say, Anguilla, the British
Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar,
Montserrat, Pitcairn, St. Helena and the Turks and Caicos Islands.
(The initial report in respect of these territories was contained
in CAT/C/9/Add.10 which was supplemented first at the oral examination
on 18 November 1992 (see CAT/C/SR.132,133 and 133/Add.2) and subsequently
by CAT/C/9/Add.14.) It also contains the United Kingdom's initial
report in respect of Bermuda and Hong Kong, to which the Convention
was extended on 8 December 1992.
Anguilla
257. No new
measures have been introduced, nor have any new developments taken
place, since the presentation of the initial report in respect of
Anguilla that might have a bearing on the implementation of the Convention
in Anguilla. Accordingly, the position remains as stated in that report,
as amplified at the oral examination and as subsequently supplemented
in writing in CAT/C/9/Add.14. The Government of Anguilla continues
at all times to seek to ensure that the requirements of the Convention
are scrupulously observed.
Bermuda
I. INFORMATION OF A GENERAL NATURE
258. The
United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment which was ratified by the United
Kingdom on 8 December 1988 was extended to Bermuda on 8 December 1992.
The extension took effect on 8 January 1993.
259. The
Criminal Justice Act 1988 (Torture) (Overseas Territories) Order 1988
(SI No. 1988/2242), as amended by the Criminal Justice Act 1988 (Torture)
(Overseas Territories) (Amendment) Order 1992, extended sections 134
and 135 of the Criminal Justice Act 1988 of the United Kingdom to
Bermuda pursuant to section 138 of the Act. Sections 134 and 135 of
the Act give effect to the provisions of the Convention by creating
an offence of torture and by providing an appropriately severe punishment
for it. Section 135 provides that the proceedings for such an offence
shall be brought only by, or with the consent of, the Attorney-General.
(The 1992 Order merely added Bermuda to the list of territories to
which the 1988 Order extended.)
260. The
International Covenant on Civil and Political Rights was ratified
by the United Kingdom in respect of Bermuda, inter alia, on
20 May 1976. Article 7 of the Covenant prohibits torture or cruel,
inhuman or degrading treatment or punishment.
261. The
European Convention on Human Rights was extended to Bermuda on 23
November 1953. Article 3 of the Convention also prohibits torture
or inhuman or degrading treatment or punishment. By successive declarations
under articles 25 and 46 - the current declaration was made in 1991
- the United Kingdom has accepted the right of individual petition
and the compulsory jurisdiction of the European Court of Human Rights
in respect of alleged violations of the Convention in Bermuda.
262. The
Constitution of Bermuda is contained in Schedule 2 to the Bermuda
Constitution Order 1968 which was made by Her Majesty in Council under
the Bermuda Constitution Act 1967 of the United Kingdom. The Bermuda
Constitution Order 1968 came into force on 21 February 1968. Chapter
1 of the Constitution contains provisions for the protection of the
fundamental rights and freedoms of the individual. Section 3 (1) of
the Constitution states that "No person shall be subjected to
torture or to inhuman or degrading treatment or punishment".
263. In addition
to constituting an offence under the Criminal Justice Act 1988 (Torture)
(Overseas Territories) Order 1988, the use of torture would, depending
on the circumstances, constitute the offence of assault under the
Criminal Code of Bermuda or another, more serious, offence. An assault
also gives rise to a breach of the civil law and can found a civil
action. The conduct prohibited by the criminal or the civil law of
Bermuda includes conduct which may fall short of torture but which
may amount to cruel, inhuman or degrading treatment or punishment.
264. Common
law rules also ensure that a confession made by an accused person
may not be given in evidence against him if it was obtained by oppression.
Such oppression may include torture or cruel, inhuman or degrading
treatment.
265. Under
section 1 of the Geneva Conventions Act 1957 of the United Kingdom,
it is an offence to commit a grave breach of any of the four Geneva
Conventions whose texts are set out in the Schedules to the Act. Under
article 50 of the Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field (the First Schedule
to the Act), one such grave breach is torture or inhuman treatment.
The Act was extended to Bermuda by the Geneva Conventions Act (Colonial
Territories) Order in Council 1959 (SI 1959/1301).
266. Although
the provisions of the Convention cannot themselves be invoked before,
and directly enforced by, the courts in Bermuda, their substance can
be so invoked and enforced by virtue of the provisions of the Criminal
Justice Act 1988 (Torture) (Overseas Territories) Order 1988 as amended
by the Criminal Justice Act 1988 (Torture) (Overseas Territories)
(Amendment) Order 1992. As section 134 of the 1988 Act (as extended
by those Orders) makes the offence of torture an indictable offence,
the Supreme Court of Bermuda has jurisdiction in relation to it.
267. The
Criminal Injuries (Compensation) Act 1973 makes it possible for an
individual who claims to have been a victim of torture or other cruel,
inhuman or degrading treatment or punishment to be compensated for
his injuries. Under section 3 of the Act, where a person is injured
and the injury is directly attributable to the commission by any other
person of a crime of violence, the Criminal Injuries Compensation
Board may on application make an order for the payment of compensation,
in such amount as it may determine, to or for the benefit of the victim.
Under section 5 of the Act, the Board may refuse to entertain a claim
for compensation where no person has been prosecuted for the offence
giving rise to the injury unless the offence has been reported to
the police as soon as reasonably practicable after its commission
by the victim or some other person on behalf of the victim. Physical
and psychological treatment which is available to victims of other
types of violent crime is available as a source of rehabilitation
to victims of torture.
268. In addition,
section 15 of the Bermuda Constitution makes provision for the enforcement
of fundamental rights set out in chapter 1, which include a person's
right not to be subjected to torture or to inhuman or degrading treatment
or punishment. Under section 15 (1), if a person alleges that he has
been, is being or is likely to be subjected to torture or to inhuman
or degrading treatment or punishment, then, "without prejudice
to any other action in respect to the same matter which is lawfully
available, that person may apply to the Supreme Court for redress".
The powers vested in the Supreme Court when such an application is
made are set out in section 15 (2), which reads as follows:
"(2)
The Supreme Court shall have original jurisdiction -
(a) to hear
and determine any application made by any person in pursuance of subsection
(1) of this section; and
(b) to determine
any question arising in the case of any person which is referred to
it in pursuance of subsection (3) of this section,
and may make such
orders, issue such writs and give such directions as it may consider
appropriate for the purpose of enforcing or securing the enforcement
of any of the foregoing provisions of this Chapter to the protection
of which the person concerned is entitled:
Provided that the
Supreme Court shall not exercise its powers under this subsection
if it is satisfied that adequate means of redress are or have
been available to the person concerned under any other law".
269. The
above matters are, as appropriate, dealt with more fully when they
arise in part II of this report.
II. INFORMATION RELATING TO ARTICLES 2 TO 16
OF THE CONVENTION
Article 2
270. Under
the laws of Bermuda there are several serious offences which could
constitute torture as defined by article 1 of the Convention. Under
section 134 of the Criminal Justice Act 1988 of the United Kingdom,
as extended to Bermuda, torture, as so defined, is an offence in itself.
In addition, torture may constitute an offence under the Criminal
Code Act 1907 (the Criminal Code), such as wounding with intent to
do grievous bodily harm, contrary to section 305; doing grievous bodily
harm, contrary to section 306; assault occasioning bodily harm, contrary
to section 309; common assault, contrary to section 314; murder, contrary
to section 287; or manslaughter, contrary to section 293.
271. Under
the Geneva Conventions Act 1957 of the United Kingdom, as extended
to Bermuda by the Geneva Conventions Act (Colonial Territories) Order
in Council 1959, a grave breach of one of the Geneva Conventions set
out in the Schedules to the Act which amounts to torture is an offence.
272. Assaults
on the person, which torture could of course amount to, are also actionable
under the civil law of Bermuda.
273. Under
the laws of Bermuda, no exceptional circumstances nor any order from
a superior officer or a public authority may be invoked as a justification
of torture.
Article 3
274. Though
there are no laws specifically prohibiting the expulsion, refoulement
or extradition of a person to a country where he risks torture, the
relevant laws in force in Bermuda (the Extradition Act 1989 of the
United Kingdom and the Immigration and Protection Act 1956) give the
competent authority, the Governor, an ultimate discretion in every
case to refuse to order the extradition or expulsion of a person who,
in law, is liable to have such an order made against him. It is inconceivable
that this discretion would ever be exercised otherwise than in conformity
with article 3 of the Convention, i.e. that a person would ever be
ordered to be extradited or expelled to another country where there
were substantial grounds for believing that he would be in danger
of being tortured.
Article 4
275. As indicated
above, under section 134 of the Criminal Justice Act 1988 of the United
Kingdom, as extended to Bermuda, acts which constitute torture are
offences. Torture, contrary to section 134 of the Criminal Justice
Act 1988, carries a maximum sentence of life imprisonment. Also as
indicated above, torture may constitute other serious offences such
as murder, manslaughter or causing grievous bodily harm contrary to
the provisions of the Criminal Code. The offence of murder also carries
a maximum sentence of life imprisonment under section 288 of the Criminal
Code. In addition, a grave breach of any of the four Geneva Conventions
of 12 August 1949 carries a maximum penalty of 14 years' imprisonment.
If the conduct involves killing, the maximum penalty is life imprisonment.
276. Under
the Criminal Code an attempt to commit certain offences is itself
an offence. In some cases specific penalties are provided for the
commission of that offence. For example, attempted murder is an offence
under section 289 of the Criminal Code and carries a maximum sentence
of 20 years' imprisonment. The Criminal Code also makes general provision
for the punishment of those offences for which no punishment is specifically
provided. For example, under section 77 of the Criminal Code "any
person who attempts to commit a felony is liable, if no other punishment
is provided, to imprisonment for two years". Under section 78
of the Criminal Code "any person who attempts to commit an indictable
offence other than treason or felony is liable, if no other punishment
is provided, to a punishment equal to one half of the greatest punishment
to which an offender convicted of the offence which he attempted to
commit is liable". Under section 79 of the Criminal Code "any
person who attempts to commit any offence other than an indictable
offence is guilty of an offence and is liable, if no other punishment
is provided, to one half of the greatest punishment to which an offender
convicted of the offence which he attempted to commit is liable".
Under section 27 of the Criminal Code any person who aids or abets
or counsels or procures the commission of a criminal offence is liable
to the same punishment as if he had himself committed that offence.
Article 5
277. The
provisions of section 134 of the Criminal Justice Act 1988 of the
United Kingdom, as extended to Bermuda, apply expressly to all acts
of torture irrespective of where they were committed and irrespective
of the nationality of the perpetrators or the nationality of their
victims. The courts of Bermuda have full jurisdiction accordingly
in conformity with article 5 of the Convention.
Article 6
278. Where
a person who is alleged to have committed or attempted to commit torture
or to be guilty of participation in torture is present in Bermuda,
the police, as the authority in Bermuda which is responsible for the
investigation and prevention of crime, would, on the matter being
brought to their attention, carry out a full investigation into the
facts.
279. Under
section 5 (1) (e) of the Bermuda Constitution no person may be deprived
of his personal liberty except upon reasonable suspicion that he has
committed, is committing, or is about to commit a criminal offence.
The Constitution authorizes, in section 5 (1) (h), deprivation of
personal liberty "for the purpose of effecting the expulsion,
extradition or other lawful removal from Bermuda of that person".
Under section 5 (3) of the Constitution any person who is arrested
or detained in such a case as is mentioned in section 5 (1) (e) and
who is not released must be brought without undue delay before a court;
"and if any person arrested or detained in such a case as is
mentioned in the said paragraph (e) is not tried within a reasonable
time he shall (without prejudice to any further proceedings that may
be brought against him) be released either unconditionally or upon
reasonable conditions, including in particular such conditions as
are reasonably necessary to ensure that he appears at a later date
for trial or for proceedings preliminary to trial".
280. Other
provisions of section 5 of the Constitution which are relevant to
this article are as follows:
Section 5 (4) - "Any
person who is unlawfully arrested or detained by any other person
shall be entitled to compensation therefor from that other person";
Section 5 (5) - "Any
person who is arrested shall be entitled to be informed, as soon
as he is brought to a police station or other place of custody,
of his rights as defined by a law enacted by the Legislature to
remain silent, to seek legal advice, and to have one person informed
by telephone of his arrest and of his whereabouts".
281. Since
the Convention was extended to Bermuda, no case has so far occurred
in Bermuda which would come under the provisions of paragraph 3 or
paragraph 4 of article 6. If such a case occurs, the requirements
of the relevant paragraph will be implemented.
Article 7
282. The
practices of the authorities in Bermuda who are responsible for the
investigation of criminal offences and for considering whether to
prosecute, namely, the police and the Attorney-General, conform to
the requirements of this article. In this context attention is also
drawn to the provisions of section 5 of the Bermuda Constitution which
are cited in paragraphs 279 and 280 above.
283. Section
6 of the Constitution provides as follows:
"6. (1) If any
person is charged with a criminal offence, then, unless the charge
is withdrawn, the case shall be afforded a fair hearing within
a reasonable time by an independent and impartial court established
by law.
(2) Every person
who is charged with a criminal offence:
(a) shall
be presumed to be innocent until he is proved or has pleaded
guilty;
(b) shall
be informed as soon as reasonably practicable, in a language
that he understands and in detail, of the nature of the
offence charged;
(c) shall
be given adequate time and facilities for the preparation
of his defence;
(d) shall
be permitted to defend himself before the court in person
or, at his own expense, by a legal representative of his
own choice or, where so provided by any law, by a legal
representative at the public expense;
(e) shall
be afforded facilities to examine in person or by his
legal representative the witnesses called by the prosecution
before the court, and to obtain the attendance and carry
out the examination of witnesses to testify on his behalf
before the court on the same conditions as those applying
to witnesses called by the prosecution;
(f) shall
be permitted to have without payment the assistance of
an interpreter if he cannot understand the language used
at the trial of the charge; and
(g) shall,
when charged on information or indictment in the Supreme
Court, have the right to trial by jury;
and, except with
his own consent, the trial shall not take place in his absence,
unless he so conducts himself in the court as to render the
continuance of the proceedings in his presence impracticable
and the court has ordered him to be removed and the trial
to proceed in his absence.
(3) When a person
is tried for any criminal offence, the accused person or any
person authorized by him in that behalf shall, if he so requires
and subject to payment of such reasonable fee as may be prescribed
by law, be given within a reasonable time after judgment a
copy for the use of the accused person of any record of the
proceedings made by or on behalf of the court".
284. Paragraphs
282 and 283 above describe how the guarantees provided for in paragraphs
2 and 3 of article 7 of the Convention are ensured. No judgements
have to date been rendered under this article.
Article 8
285. Extradition
to and from Bermuda, as in the case of other United Kingdom dependent
territories, is now governed by the Extradition Act 1989 of the United
Kingdom, which consolidates the law formerly embodied in the Extradition
Act 1870, as from time to time amended (including as amended by those
provisions of the Criminal Justice Act which were enacted to give
effect to the Convention), and the Fugitive Offenders Act 1967, as
likewise amended. Section 38 (4) of the Extradition Act 1989 preserves
the effect of section 136 (1) of the Criminal Justice Act 1988 which
provided that torture should be an extradition crime in the law of
the United Kingdom (and therefore of Bermuda). This goes most of the
way towards implementing paragraph 1 of article 8 of the Convention
so far as it concerns existing extradition arrangements between the
United Kingdom and other States parties to the Convention. However,
in relation to Bermuda, that process will not be complete and there
will also be no provision giving effect to paragraph 2 of article
8 (concerning States parties with whom the United Kingdom does not
have existing extradition arrangements) until an Order in Council
is made adding Bermuda to the list of those dependent territories
to which the Extradition (Torture) Order 1991 extends. Such an Order
is in the course of preparation and it is hoped that it will be made
shortly. Section 22 (6) of the Extradition Act 1989 and paragraph
15 of Schedule 1 to that Act re-enact section 136 (2) of the Criminal
Justice Act 1988 which provided that any act or omission, wherever
committed, which constitutes torture and a corresponding offence against
the law of any State with which an extradition treaty has been completed
shall be deemed to be an offence committed within the jurisdiction
of that State. This implements paragraph 4 of article 8.
Article 9
286. The
Government of Bermuda is currently considering the provisions of a
model treaty which would facilitate international mutual legal assistance
in criminal matters. However, the existing extradition laws could
provide the kind of assistance required by this article.
287. In addition,
sections 27P to 27T of the Evidence Act 1905 (which are substantially
to the same effect as the relevant provisions of the Evidence (Proceedings
in Other Jurisdictions) Act 1975 of the United Kingdom) make provision
for the taking of evidence required for both civil and criminal proceedings
in other jurisdictions. [The texts of these provisions are available
for consultation in the files of the Centre for Human Rights.]
Article 10
288. The
law enforcement personnel in Bermuda, namely, the police, are prohibited
by their disciplinary code from inflicting torture on any person.
For example, order 8 of the Police (Discipline) Orders 1975 makes
any unlawful or unnecessary exercise of authority, that is to say,
the use by a police officer of any unnecessary violence on any prisoner
or person with whom he may be brought into contact in the execution
of his duty, an offence against discipline for which there are prescribed
punishments. The Police (Discipline) Orders 1975 are made under section
32 of the Police Act 1974.
289. Under
rule 12 (q) of the Prison Officers (Discipline, etc.) Rules 1981 a
prison officer is guilty of an offence against discipline "if
he, in dealing with a prisoner, uses force unnecessarily or, where
the application of force to a prisoner is necessary, uses undue force."
These rules are made under section 32 of the Prisons Act 1979. Disciplinary
awards or punishments are set out in rule 18 of the rules.
290. Under
section 65 of the Mental Health Act 1968 it is an offence "for
any person being an officer on the staff or otherwise employed at
the Mental Hospital or other mental nursing home to ill-treat or wilfully
neglect a patient for the time being receiving psychiatric care as
an in-patient in that hospital or home; or to ill-treat or unlawfully
neglect, on the premises of which the Mental Hospital or mental nursing
home forms part, a patient for the time being receiving such care
there as an out-patient". Any person who commits an offence under
section 65, if convicted on indictment, may be imprisoned for two
years or, upon summary conviction, may be imprisoned for six months
or fined $720 or both. No proceedings can be instituted for an offence
under section 65 except by or with the consent of the Attorney-General.
291. The
preceding information indicates that the prohibition against torture
is directly or by implication embodied in the legislation which governs
the conduct of law enforcement and medical personnel who may be responsible
for or involved in the custody, interrogation or treatment of any
person who has been arrested, detained or imprisoned in Bermuda. The
training of such personnel would include familiarization with the
legislative prohibitions discussed above and measures to ensure their
implementation.
Article 11
292. Under
section 33 of the Police Act 1974 the Commissioner of Police "may
issue administrative instructions, to be called Force Standing Instructions,
not inconsistent with this Act or any order made thereunder, for the
general control, direction and information of the Force and Reserve
Constabulary". Such instructions may relate to police duties
and "such other matters as may be necessary or expedient for
preventing abuse or neglect of duty and for rendering the Force and
Reserve Constabulary more efficient in the discharge of their duties":
section 33 (1) of the Police Act 1974. The Force Standing Instructions
set out the rules and methods to be adopted by the Bermuda police
in relation to the custody, treatment and interrogation of detained
persons and are reviewed periodically as necessary. The Force Standing
Instructions, in addition, require the Bermuda Police to adhere to
the Judges Rules pertaining to the questioning of suspects and persons
charged with offences.
293. Under
section 7 of the Prisons Act 1979 the Minister responsible for the
Prisons Department has the power to make rules for the regulation
and management of prisons and for the treatment of persons required
to be detained therein. In exercise of that power the Minister has
made the Prison Rules 1980. In addition, section 9 of the Prisons
Act 1979 provides that the functions of the Treatment of Offenders
Board are to be prescribed by the prison rules made under section
7 which shall "among other things require the members to pay
visits to each prison and hear any applications which may be made
by prisoners detained therein and to report to the Minister any matter
which they consider it expedient to report". It further provides
that "any member may by arrangement with the senior officer enter
any prison and shall have free access to every part thereof and to
every prisoner detained therein". Under rule 163 (2) of the Prison
Rules 1980 "the Board shall hear any complaint or application
which a prisoner may wish to make to the Board and it may, if necessary,
discuss with the Commissioner or his Deputy the circumstances of that
complaint or application together with any opinion held or recommendations
to be made by the Board".
Article 12
294. Under
instruction 3 of chapter 1 of the Force Standing Instructions of the
Bermuda Police Force, made under section 33 of the Police Act 1974,
"when a crime or suspected crime is brought to the notice of
Police it is essential that the Force machinery is set in motion immediately".
The responsibilities and procedures which would be applicable to an
investigation under this article are set out in detail in the Force
Standing Instructions. To date there have been no reported investigations
under his article.
Article 13
295. As indicated
in paragraph 37 above, it is the practice of the Bermuda Police Force,
as dictated by the Force Standing Instructions, to take immediate
action once notification has been received regarding the suspected
or actual commission of an offence. The administrative procedures
used by the Bermuda police in the investigation of any serious criminal
offence would be used in the investigation of an alleged offence of
torture. Such procedures are set out in the Force Standing Instructions.
296. The
laws of Bermuda make provision for the protection of a complainant
and witnesses against ill-treatment or intimidation as a consequence
of his complaint or of any evidence given. Section 36 of the Magistrates
Act 1948 states that, without prejudice to any other Act, any person
who uses indecent, violent, insulting or threatening words or gestures
in a court or to any party or witness within the precincts of a court
or unlawfully assaults any person in court commits an offence under
the Act and is liable to be dealt with in accordance with section
37. Section 37 of the Magistrates Act 1948 reads as follows:
"(1) Except as
provided in subsection (3), any person guilty of an offence against
the Act may be arrested by a police officer on the verbal order
of the magistrate if the offender is in court, or with a warrant
signed by the magistrate if the offender is not present in court,
and thereupon it shall be lawful for the magistrate:
(a) to admonish or
discharge the offender; or
(b) to order the offender
to be removed from the court; or
(c) to order the offender
to pay a fine not exceeding $2,000.
(2) Where the offender
has failed or neglected to pay any fine imposed upon him under
this section within such time as the magistrate may have prescribed,
it shall be lawful for the magistrate to commit the offender to
prison by warrant under his hand for a term not exceeding 14 days."
297. In addition,
section 125A of the Criminal Code Act 1907 makes it an offence to
intimidate a witness. It reads as follows:
(a) threatens, intimidates,
or restrains;
(b) uses
violence to or inflicts injury on;
(c) causes or procures
violence, damage, loss or disadvantage to; or
(d) causes or procures
the punishment of, or loss of employment of,
a person for or on
account of his having appeared, or being about to appear, as a
witness in a judicial proceeding is guilty of a summary offence
and shall be liable on conviction to imprisonment for 12 months."
Attention
is also drawn to the provisions of the Prison Rules 1980 cited above.
Article 14
41. Under
section 3 of the Criminal Injuries (Compensation) Act 1973,
where a person
is killed or injured, and the death or injury is directly attributable
to the committing by any other person of a crime of violence (which
term would of course include torture), the Criminal Injuries Compensation
Board may on application make an order for the payment of compensation
in such amount as it may determine. Such payment may be made to the
following persons under section 3(1):
"(i)
to or for the benefit of the victim; or
(ii) where
the compensation is in respect of pecuniary loss suffered or expenses
incurred, as a result of the victim's injury, by any person responsible
for the maintenance of the victim, to that person; or
(iii) where
the victim has died as a result of the crime of violence:
(a) or for the
benefit of the victim's dependants or any one or more of them;
or
(b) if there
are no such dependants and the compensation is in respect of expenses
incurred as a result of the victim's death, to the person who incurred
those expenses."
299. The
benefits of the Act are not confined to nationals or to any other
restricted group of persons. Section 1 defines "victim",
for the purposes of the Act, simply as "a person who has sustained
an injury in the circumstances set out in section 3".
300. There
are no programmes of rehabilitation in Bermuda which exist exclusively
for victims of torture. However, such victims would have access to
physicians, psychiatrists and other specialists for any necessary
physical or psychiatric rehabilitation.
301. In addition
to or instead of seeking compensation under the Criminal Injuries
(Compensation) Act 1973, a victim of torture would also have the right
to seek damages from the perpetrators by way of civil proceedings,
e.g. for assault or trespass to the person. In such proceedings, compensation
for the pain and suffering and any other damage caused would be available,
including exemplary damages where appropriate. (But any damages so
obtained would have to set off against any compensation awarded under
the Act.)
Article 15
302. Under
the common law rules of evidence, confessions or statements made as
a result of torture or other oppressive means are inadmissible as
evidence in judicial proceedings.
Article 16
303. As in
the case of torture stricto sensu, the type of ill-treatment
contemplated by this article could, depending on the facts, constitute
a criminal offence under the Criminal Code Act 1907 and/or give rise
to civil proceedings for damages. In addition, section 3 of the Bermuda
Constitution specifically prohibits inhuman or degrading treatment
or punishment, as well as torture, and the procedural remedies guaranteed
by section 15 of the Constitution would be available in any such case.
Attention is also drawn to the application to Bermuda of article 7
of the International Covenant on Civil and Political Rights and, especially,
article 3 of the European Convention on Human Rights, both of which
also prohibit inhuman or degrading treatment or punishment. In general
it can be said that the preventative measures and procedural protections
outlined earlier in this report apply, as appropriate, in relation
to such treatment or punishment as they apply in relation to torture.
304. As regards
corporal punishment, there are provisions in the Criminal Code Act
1907, at present still unrepealed, which authorize whipping as a punishment
and there are some other provisions in the laws of Bermuda which also
nominally authorize corporal punishment. However, the repeal of the
relevant provisions of the Criminal Code Act 1907 has already been
approved and will take place in the course of 1994 and the courts
of Bermuda, as a matter of judicial policy, do not impose corporal
punishment under any of the provisions concerned.
British Virgin Islands
305. No new
measures have been introduced, nor have any new developments taken
place, since the presentation of the initial report in respect of
the British Virgin Islands that might have a bearing on the implementation
of the Convention in the Islands. However, it can be reported, with
reference to a question that was raised by the Committee at the oral
examination of that report and that was commented on in the supplementary
material subsequently submitted by the United Kingdom Government (CAT/C/9/Add.14),
that active consideration is now being given to the establishment
of a formal scheme for legal aid in criminal cases. Subject to that,
the position accordingly remains as stated in the initial report,
as amplified at the oral examination and as subsequently supplemented
in CAT/C/9/Add.14. The Government of the British Virgin Islands continues
at all times to seek to ensure that the requirements of the Convention
are scrupulously observed.
Cayman Islands
I. INFORMATION OF A GENERAL NATURE
306. For
the most part, the position with respect to the implementation of
the Convention in the Cayman Islands remains as stated in the initial
report in respect of the territory, as amplified at the oral examination
and as subsequently supplemented in writing in CAT/C/9/Add.14.
307. However,
since the presentation of the initial report and the submission of
the supplementary material referred to above, there have been, in
certain areas, some new developments which may be thought to have
a bearing on the implementation of some of the provisions of the Convention
and there are also certain aspects in which the material previously
submitted can be usefully amplified. Information on these matters
is accordingly now submitted to the Committee. It is set out in part
II of this report under the headings of the respective articles of
the Convention to which it relates.
308. The
Government of the Cayman Islands continues at all times to seek to
ensure that the requirements of the Convention are scrupulously observed.
II. NEW DEVELOPMENTS AND SUPPLEMENTARY INFORMATION
Article 3
309. It is
to be noted that the 1951 United Nations Convention relating to the
Status of Refugees and the 1967 Protocol thereto apply to the Cayman
Islands. This is of particular importance because of the geographical
proximity to the Cayman Islands of Cuba and to a lesser extent Haiti.
The Cayman Islands have adopted for local use the United Kingdom Home
Office guidelines on procedures and criteria for determining refugee
status. These are themselves modelled on the guidelines issued by
the United Nations High Commissioner for Refugees. The criteria and
procedures used with regard to refugees have been endorsed by representatives
of UNHCR who have visited the Cayman Islands.
310. Also
relevant in this context are the provisions of the Immigration Law
1992 (and its predecessor, the Cayman Protection Law 1984) relating
to deportation. Under this legislation the Governor has power to deport
any person who is:
(a) A convicted
and deportable person;
(b) An undesirable
person;
(c) A destitute
person;
(d) A prohibited
immigrant who has entered the Islands contrary to the provisions of
the law;
(e) A person
whose permission to land and to remain or reside in the Islands, or
any extension thereof, has expired or has been revoked and who fails
to leave the Islands; or
(f) A person
in respect of whom the Governor considers it conducive to the public
good to make a deportation order.
The Governor
must report all deportation orders to the Secretary of State for Foreign
and Commonwealth Affairs.
311. No one
has ever been repatriated to Cuba from the Cayman Islands. There have
been three or four instances in the past seven years where citizens
of Haiti have been deported to their country of origin. However, no
deportations to Haiti have taken place since Haitian President Jean
Bertrand Aristide was ousted in a military coup d'état in 1991.
In each of the instances cited above assurances were sought from the
Ministry of External Affairs in Haiti that there would be no adverse
consequences of repatriation for the Haitian citizens involved.
Article 10
312. The
legal position as previously explained remains unchanged. However,
it should be emphasized, as regards complaints by prisoners, that
rule 8 of the Prisons Rules 1981, made under the Prison Law 1975,
requires that a prisoner shall see the Director of Prisons within
24 hours of making a formal request to do so. Further, rule 41 requires
that any case in which force has been used shall be reported in writing
to the Director immediately thereafter.
313. In addition,
the Director of Prisons is obliged, under regulation 3(4) of the Prison
(Discipline for Prison Officers) Regulations 1984, to refer any alleged
disciplinary offence to the police for their action if in his opinion
it is of sufficiently serious nature. Any police constable, on production
of an authority issued by or on behalf of the Commissioner of Police,
may interview any prisoner wishing to see him.
314. The
legal and administrative machinery therefore exists in the Cayman
Islands for the investigation of all complaints of ill-treatment made
by prisoners, including, of course, any complaints of torture or of
cruel, inhuman or degrading treatment or punishment. No complaints
of torture have ever been referred to the police.
Article 11
315. The
Cayman Islands is currently undertaking a review of prison operations
and rules. This is being carried out on the recommendation and under
the guidance of the United Kingdom's regional adviser on prisons.
Training of prison officers is a significant part of the exercise.
Articles 12 and 13
316. In 1992
the Royal Cayman Island Police Force established a separate Complaints
and Discipline Branch, staffed by an experienced inspector and sergeant.
The vigorous and effective investigation of complaints against the
police and the punishment or correction of breaches of discipline
is, of course, a topic that is closely monitored and is also fully
reported on in the Police Force Annual Reports. Appended to the present
report are statistics and information gathered from those Annual Reports
relating to complaints and discipline cases for the years 1991, 1992
and 1993, with special reference to cases involving allegations of
mistreatment of persons in police custody. It may be noted that none
of the complaints was sufficiently serious to justify criminal proceedings
being instituted against any of the police officers concerned. Also
appended are extracts from the Annual Reports for those years dealing
with the particular topic of Complaints and Discipline. [This information
is available for consultation in the files of the Centre for Human
Rights.]
Article 16
317. There
are two matters to be noted in the context of article 16 of the Convention:
(a) The
law of the Cayman Islands does not authorize the imposition of a sentence
of imprisonment with hard labour;
(b) With
effect from 10 May 1991, the death penalty for murder has been abolished
in the Cayman Islands.
Falkland Island
318. No new
measures have been introduced, nor have any new developments taken
place, since the presentation of the initial report in respect of
the Falkland Islands that might have a bearing on the implementation
of the Convention in the territory. Accordingly, the position remains
as stated in that report, as amplified at the oral examination and
as subsequently supplemented in writing in CAT/C/9/Add.14. The Government
of the Falkland Islands continues at all times to seek to ensure that
the requirements of the Convention are scrupulously observed.
Gibraltar
319. No new
measures have been introduced, nor have any new developments taken
place, since the presentation of the initial report in respect of
Gibraltar that might have a bearing on the implementation of the Convention
in the territory. Accordingly, the position remains as stated in that
report, as amplified at the oral examination and as subsequently supplemented
in writing in CAT/C/9/Add.14. The Government of Gibraltar continues
at all times to seek to ensure that the requirements of the Convention
are scrupulously observed.
Hong Kong
I. INFORMATION OF A GENERAL NATURE
320. The
United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, which was ratified by the United
Kingdom on 8 December 1988, was extended to Hong Kong on 8 December
1992.
321. Although
the provisions of the Convention cannot themselves be invoked before,
and directly enforced by, the courts of Hong Kong, their substance
can be so invoked and enforced by virtue of the Crimes (Torture) Ordinance
Texts marked with an asterisk are available for consultation in the
files of the Centre for Human Rights. which was enacted in January
1993 to give effect in Hong Kong to the provisions of the Convention.
It creates and defines the offence of torture, essentially in the
same terms as in section 134 of the Criminal Justice Act 1988 of the
United Kingdom, and provides for a penalty of life imprisonment for
a person convicted of that offence. It also amends the law relating
to extradition from Hong Kong in order to give effect to the provisions
of the Convention which deal with the extradition of persons accused
of acts of torture.
322. The
International Covenant on Civil and Political Rights was ratified
by the United Kingdom in respect of Hong Kong on 20 May 1976. Article
7 of the Covenant prohibits torture or cruel, inhuman or degrading
treatment or punishment. Until recently, the provisions of the Covenant
were implemented in Hong Kong through a combination of the common
law, legislation and administrative measures. But in view of the strong
support in the community for the embodiment of basic civil and political
rights in a justiciable Bill of Rights, the Hong Kong Bill of Rights
Ordinance* was enacted in June 1991. This gives effect in local law
to the provisions of the Covenant as applied to Hong Kong. To complement
the protection afforded by the Bill of Rights, the Letters Patent
for Hong Kong* were amended so as to ensure that no law can be made
in Hong Kong that restricts the rights and freedoms enjoyed in Hong
Kong in a manner which is inconsistent with the Covenant as applied
to Hong Kong. This amendment came into operation at the same time
as the Bill of Rights Ordinance.
323. Under
the Geneva Conventions Act 1957 of the United Kingdom, it is a criminal
offence to commit a grave breach of any of the four Geneva Conventions
which are set out in the Schedule to the Act. One such grave breach
is torturing a protected person or subjecting him to inhuman treatment.
The Act was extended to Hong Kong by the Geneva Conventions Act (Colonial
Territories) Order in Council 1959, and such conduct would therefore
be a criminal offence under the law of Hong Kong by virtue of the
1957 Act also.
324. It is
also a criminal offence in Hong Kong, under the common law and also
under statute, to assault a person. Acts of torture might also, depending
on the circumstances, involve the commission of such crimes as murder
or wounding. An assault also constitutes a wrong in civil law and
could thus found a civil action for redress. The conduct prohibited
by the criminal law or constituting a wrong in civil law includes
conduct which, though it may fall short of torture, might amount to
cruel, inhuman or degrading treatment or punishment.
325. Under
the law of Hong Kong a confession made by an accused person may not
be given in evidence against him if it was obtained by oppression,
which term includes torture or cruel, inhuman or degrading treatment
or punishment or the threat thereof.
326. The
above matters are, as appropriate, dealt with in more detail where
they arise in part II of this report. In addition, a fuller exposition
of the judicial, administrative and other institutions and arrangements
which obtain in Hong Kong for the protection of human rights in general
and for the redress of grievances, including allegations of conduct,
or threatened conduct, violating the rights guaranteed by the Torture
Convention, is contained in the core document (or "country profile")
for Hong Kong which has been submitted to the Centre for Human Rights
and which will be before the Committee.
II. INFORMATION RELATING TO ARTICLES 2 TO 16
OF THE CONVENTION
Article 2
327. Under
Hong Kong law, torture is prohibited under section 3 of the Crimes
(Torture) Ordinance. A public official or person acting in an official
capacity, whatever his nationality or citizenship, commits the offence
of torture if, in Hong Kong or elsewhere, he intentionally inflicts
severe pain or suffering on another person in the performance or purported
performance of his official duties. Other persons, whatever their
nationality or citizenship, commit the offence of torture if, in Hong
Kong or elsewhere, they intentionally inflict severe pain or suffering
on another person at the instigation or with the consent or acquiescence
of a public official or any other person acting in an official capacity
and the official or other person in performing or purporting to perform
his official duties when he instigates the commission of the offence
or consents to or acquiesces in it.
328. For
the purposes of the Ordinance, it is immaterial whether pain or suffering
is physical or mental and whether it is caused by an act or an omission.
329. It is
a defence for a person charged with an offence under the Ordinance
in respect of any conduct of his to prove that he had lawful authority,
justification or excuse for that conduct.
330. The
gravity of the offence of torture is reflected in the sanction imposed:
a person contravening the Ordinance is liable to imprisonment for
life.
331. Torture
and cruel, inhuman or degrading treatment or punishment are also prohibited
under article 3 of the Bill of Rights set out in the Hong Kong Bill
of Rights Ordinance. Article 3 includes a particular prohibition on
the subjection of any person without his free consent to medical or
scientific experimentation.
332. Under
the Geneva Conventions Act 1957, as extended to Hong Kong, it is an
offence to inflict torture or inhuman treatment on a person who is
a protected person under one of the four Geneva Conventions.
333. It is
an offence in Hong Kong, both under common law and under the Offences
against the Person Ordinance, to assault a person. Torture could also,
depending on the circumstances, involve the commission of such offences
as murder, manslaughter, wounding, etc. An assault also constitutes
a civil wrong and can found a civil action.
334. Neither
"exceptional circumstances" nor "superior orders"
could be invoked in the law of Hong Kong as a justification for torture.
335. There
has not been any reported case of torture as defined in the Crimes
(Torture) Ordinance.
Article 3
336. Hong
Kong's extradition legislation gives the Governor a discretion to
refuse to order the surrender of a fugitive criminal to another jurisdiction
even if, in law, the grounds for such surrender have been established.
That discretion would be exercised consistently with the obligation
in article 3. The Governor's decision is judicially reviewable.
337. There
have of course been numerous cases of the extradition of fugitive
criminals from Hong Kong to other countries. However, there has been
no case of the Governor having to refuse to order the surrender of
a person on the grounds that he would be in danger of being subjected
to torture.
338. There
has been one extradition case where a fugitive argued that, because
one of the crimes for which his extradition to the United States was
sought carried a mandatory minimum sentence of life imprisonment,
his extradition to face the possibility of such a penalty would involve
a violation of article 3 (inhuman or degrading treatment) of the Hong
Kong Bill of Rights. The magistrate rejected this argument. He noted
that there was no evidence before him that imprisonment in the United
States of America was inhuman or degrading or infringed the inherent
dignity of the human person. (United States v. Johnny Eng CMP
No. 1274 of 1990, 27 September 1991.)
339. There
are various provisions in the Immigration Ordinance authorizing the
removal or deportation of a person who does not have the right of
abode in Hong Kong. The cases in which this power may be exercised
include cases where:
(a) He is
refused permission to land in Hong Kong;
(b) He has
entered Hong Kong unlawfully;
(c) He remains
in Hong Kong without permission of the Director of Immigration;
(d) He has
breached the immigration laws;
(e) He has
been found guilty in Hong Kong of an offence punishable with imprisonment
for not less than two years or his deportation is conducive to the
public good.
340. A person
who is subject to a removal order issued by the Director of Immigration
or Deputy Director of Immigration may:
(a) Appeal
to the Immigration Tribunal, which is an independent statutory body
set up under the law;
(b) Petition
the Governor under Colonial Regulation 168;
(c) Seek
judicial review from the High Court.
341. Under
article 9 of the Bill of Rights, a person who does not have the right
of abode in Hong Kong but who is lawfully in Hong Kong may be expelled
from Hong Kong only in pursuance of a decision reached in accordance
with the law and must, except where compelling reasons of national
security otherwise require, be allowed to submit the reasons against
his expulsion to, and to have his case reviewed by, and be represented
for the purpose before, the competent authority or a person or persons
specially designated by the competent authority.
342. In the
exercise of the powers referred to in the preceding paragraphs, any
allegation by a potential removee or deportee that he was likely to
be subjected to torture in the country to which he was to be returned
would be carefully assessed. His return would not be ordered if that
allegation was thought to be well-founded.
343. Vietnamese
migrants who have been screened out as non-refugees in accordance
with the 1951 Geneva Convention and the 1967 Protocol on the status
of Refugees will be returned to Viet Nam as illegal immigrants. Any
person whom the Hong Kong Government or UNHCR believes to be a genuine
refugee will not be repatriated. The policy to repatriate non-refugees
from Viet Nam is based on the Comprehensive Plan of Action which was
endorsed in 1989 by over 74 Governments at an international conference
held at Geneva. The Comprehensive Plan of Action states that those
who are regarded as refugees will be resettled overseas and those
who are regarded as non-refugees will be treated as illegal immigrants
and will be liable to be returned to their countries of origin.
344. The
status determination criteria adopted are those recommended by UNHCR
worldwide. The procedures were devised in consultation with UNHCR
and contain several checks to ensure they are administered as fairly
as possible.
345. Those
being screened are given every assistance possible, including written
information in advance about the screening process and their right
of appeal. UNHCR lawyers provide prescreening counselling and are
available to give legal and other advice to asylum-seekers at any
stage. UNHCR is also able to monitor interviews of individuals, as
well as to offer advice on any aspect of screening throughout the
process.
346. Any
person given non-refugee status in the first stage of screening has
the right of appeal to an independent review board. UNHCR lawyers
and the review board meet weekly to discuss appeal cases and, if UNHCR
disagrees with the board's decision, it can unilaterally exercise
its right to declare any asylum-seeker to be a refugee.
347. After
years of experience, during which various improvements have been made,
the Hong Kong Government believes that the present system is as fair
as it can be. The screening procedures were subjected to rigorous
scrutiny during a three-month judicial review in 1991. In its 70-page
judgement, covering many detailed aspects of the screening process,
the court endorsed the system and concluded that it was fair and practical.
348. Screening
officers receive a two-week intensive training course before they
take up their posts and attend regular workshops conducted by UNHCR
to ensure the proper interpretation of the criteria for determining
refugee status. They, as well as Refugee Status Review Board members,
are also kept conversant with the current situation in Viet Nam by
regular familiarization visits to that country.
349. In October
1991 agreement was reached between the Governments of the United Kingdom,
Hong Kong and Viet Nam for the return to Viet Nam under an Orderly
Repatriation Programme of all those who have been screened out as
non-refugees. As in the case of the voluntary repatriation programme
organized by UNHCR the Vietnamese Government have given guarantees
and assurances of non-discrimination and non-persecution to all those
who are to be returned under the Orderly Repatriation Programme. The
well-being of all returnees is being monitored by UNHCR and the British
Embassy in Hanoi. Over 43,000 Vietnamese migrants have returned to
Viet Nam either voluntarily or under the Orderly Repatriation Programme.
There has not been a single substantiated case of persecution or discrimination.
350. The
Immigration Department of the Hong Kong Government also handle the
repatriation to China of ex-China Vietnamese illegal immigrants (ECVIIs).
These are Vietnamese migrants who fled Viet Nam in the Sino-Viet Nam
conflict in 1978/79 and have been resettled in China. They enter Hong
Kong illegally for economic reasons. There has been no report of any
of them being tortured on return to China.
351. All
illegal immigrants intercepted are interviewed by immigration officers
to obtain information on their background and to ascertain their identity
and country of origin. If they object to repatriation, they are given
an opportunity to put the grounds for this objection in writing. These
will then be carefully considered before a decision is reached. An
illegal immigrant who is subject to a removal order can appeal to
an independent tribunal established under the law. Normally, the detention
period for an illegal immigrant from China (who is willing to return
to that country) is relatively short (less than a week) unless he
is also involved in other criminal activities in Hong Kong or is required
to give evidence in courts.
352. Any
illegal immigrants who claimed that they would be subjected to torture
on return would be allowed full opportunities to put their cases forward.
These would then be thoroughly investigated and carefully considered.
An order for return would not be made if such a claim were thought
to be well-founded.
353. Except
for persons who enjoy the right of abode in Hong Kong, deportation
orders may be made against persons who have been found guilty in Hong
Kong of an offence punishable with imprisonment for not less than
two years or whose deportation the Governor deems to be conducive
to the public good. Before such an order is made, the person concerned
is given ample opportunity to state any grounds he may have for objecting
to deportation, including the likelihood of his being subjected to
torture after deportation, and these are carefully considered by the
Governor. In the case of British citizens, a deportation tribunal
chaired by a judge is appointed to hold an inquiry at which the potential
deportee may make representations. The tribunal's report is forwarded
to the Secretary for Security for consideration before a decision
is made. No person will be ordered to be deported if it is considered
that there are well-founded fears that this may result in his being
subjected to torture.
Article 4
354. All
acts of torture as defined in the Convention are offences under the
criminal law. As explained above, such acts are offences under section
3 of the Crimes (Torture) Ordinance and are capable of constituting
other serious offences as well. Torture, contrary to section 3 of
the Crimes (Torture) Ordinance, murder and certain other offences
(such as wounding and causing grievous bodily harm) contrary to section
17 of the Offences against the Person Ordinance all carry a maximum
sentence of life imprisonment. The offences of threatening to kill
and of administering poison so as to endanger life carry a maximum
penalty of 10 years' imprisonment.
355. By virtue
of section 89 of the Criminal Procedure Ordinance, a person who aids,
abets, counsels, or procures the commission of an offence is guilty
of the like offence.
356. There
has been no reported case of torture as defined in the Crimes (Torture)
Ordinance.
Article 5
357. Under
section 3 of the Crimes (Torture) Ordinance, the offence of torture
is committed whether the conduct takes place in Hong Kong or elsewhere
and the nationality of the perpetrator or the victim is immaterial.
The courts of Hong Kong have full jurisdiction accordingly in conformity
with article 5 of the Convention.
Article 6
358. Where
it is alleged that a person who is present in Hong Kong has participated
in an act of torture and this is brought to the attention of the authorities,
the Hong Kong police would carry out a full investigation. Under section
50 (1) of the Police Force Ordinance the police have power to arrest
without warrant a person reasonably suspected of an offence for which
the sentence is fixed by law or for which a person may be sentenced
to imprisonment on first conviction: this of course includes the offence
of torture. An arrested person may normally be detained for questioning
for up to 48 hours without charge. At the expiry of this period, he
must either be charged and brought before a magistrates' court or
be bailed to appear in court or be released without charge, either
on bail or without bail.
359. The
basic rights, in conformity with article 6 of the Convention, of a
person arrested or detained with a view to his trial or extradition
for the offence of torture are supported by article 5 of the Hong
Kong Bill of Rights. If he is a foreign national, he is permitted,
in accordance with paragraph 3 of article 6 of the Convention, to
communicate with his High Commission or consulate: the arrangement
for this is made by administrative means.
Article 7
360. The
requirements of article 7 accord with the long-standing practice of
the relevant authorities in Hong Kong and with the law administered
by the courts of Hong Kong as regards the investigation, prosecution
and trial of alleged criminal offences and the rights of persons charged
with or convicted of such offences. These matters are now specifically
regulated by articles 5, 6, 10, 11 and 12 of the Hong Kong Bill of
Rights.
Article 8
361. The
basis of the law relating to extradition from Hong Kong is now Schedule
1 to the Extradition Act 1989 of the United Kingdom which governs
requests for surrender to foreign States and the Fugitive Offenders
(Hong Kong) Order 1967 which governs requests for surrender to Commonwealth
countries. Sections 5 and 6 of Hong Kong's Crimes (Torture) Ordinance
made a number of adaptations to this body of law, as it applies to
Hong Kong, for the specific purpose of implementing in Hong Kong the
provisions of article 8 of the Convention. There has been no occasion
to date to invoke either of those sections in practice since there
has been no case in which the extradition from Hong Kong of any person
accused of the crime of torture has been sought. However, the question
has recently been raised whether the two sections, as currently drafted,
are fully effective for their intended purpose or whether further
or amending legislation may still be necessary. This question is now
under active consideration. If the conclusion is that such legislation
is required, it will of course be put in hand as soon as possible.
Article 9
362. The
affording of assistance to other States parties as required by this
article can be effected by furnishing information and providing investigatory
assistance on an informal, non-statutory basis. In cases where the
formal provision of evidence is requested, the necessary machinery
is provided by sections 75-77B of the Hong Kong Evidence Ordinance
(which substantially correspond to sections 1-5 of the United Kingdom's
Evidence (Proceedings in Other Jurisdictions) Act 1975). Under this
legislation, the High Court in Hong Kong can compel witnesses to testify
if a request is received from a foreign court in which criminal proceedings
have been instituted or are likely to be instituted if the evidence
is obtained.
Article 10
363. All
police officers are trained, through basic training and subsequent
training courses, to treat all persons as individuals with humanity
and respect and to act within the law at all times. These courses,
one of the major purposes of which is to ensure the proper treatment
of detained and arrested persons, cover the procedures governing the
questioning of suspects, disciplinary codes stipulated in the Police
Force Ordinance, Police General Orders and Headquarters Orders. All
police officers are made aware that an infringement of laws governing
a person's rights could constitute a criminal offence.
364. Induction
and ongoing training (such as in-service and development training)
is conducted to familiarize staff members with the requirements of
the relevant legislation and policies. The relevant United Nations
Standard Minimum Rules for the Treatment of Prisoners, the Bill of
Rights and the provisions of the Crimes (Torture) Ordinance are included
in the training programmes. Specialist training such as psychiatric
nursing provides selected staff members with the professional knowledge
to assist medical officers in the recognition of any abnormal physical
signs of abuse, in the monitoring of the physical and mental well-being
of inmates suspected of psychiatric problems and in the identification
of any psychological feature which would indicate mental anguish resulting
from whatever cause.
365. All
law enforcement officers in the Customs and Excise Department, whether
disciplined or civilian, involved in the custody, interrogation or
treatment of arrested or detained persons have to receive induction
training. The training programmes emphasize the need to treat everyone
as an individual and with humanity and respect and to act within the
law at all times. They also cover, inter alia, detailed procedures
such as the "Rules and Directions for the Questioning of Suspects
and the Taking of Statements"* (see para. 370 below) and other
internal orders and instructions which aim at ensuring that detained
or arrested persons are properly treated.
366. All
immigration officers are trained in the proper handling of suspects
in custody. They are also fully briefed on the provisions of the Crimes
(Torture) Ordinance.
367. All
officers of the Independent Commission Against Corruption have been
made aware of the fact that torture is now a specific offence in the
law of Hong Kong. They are also trained to treat detained persons
in accordance with the "Treatment of Detained Persons Order"
(see paras. 377-378 below).
368. All
health care professionals, and in particular doctors and nurses working
under the Hospital Authority and the Department of Health, are adequately
equipped through their training and education to recognize quickly
any abnormal physical signs of abuse. Both nurses and doctors, as
part of their routine duties in caring for patients, closely monitor
the physical and mental well-being of patients through history-taking,
physical examinations and, if necessary, laboratory investigation.
369. Similarly,
psychiatrists and psychiatric nurses working under the Hospital Authority
are adequately equipped in terms of knowledge and skill to identify
any psychological features which indicate mental anguish resulting
from whatever cause.
Article 11
370. Police
powers are under constant review in Hong Kong. The relevant provisions
of the Police Force Ordinance governing police powers of arrest, search,
seizure and detention were amended in 1992 to make them consistent
with the Bill of Rights Ordinance. The Law Reform Commission published
a report on arrest in November 1992. The Administration is now considering
in great depth the recommendations of the Law Reform Commission on
various police powers. Meanwhile, "Rules and Directions on the
Questioning of Suspects and the Taking of Statements" were promulgated
in 1992 to ensure that written statements and oral answers obtained
from suspects are voluntarily given and thus admissible as evidence
in court. These "Rules and Directions" are based on the
Judges' Rules as formerly in force in the United Kingdom.
371. The
operation of custodial institutions and detention centres under the
Correctional Services Department are governed by the following Ordinances:
(a) Prisons
Ordinance and its subsidiary legislation (Cap. 234);
(b) Detention
Centres Ordinance and its subsidiary legislation (Cap. 239);
(c) Drug
Addiction Treatment Centres Ordinance and its subsidiary legislation
(Cap. 244);
(d) Training
Centres Ordinance and its subsidiary legislation (Cap. 280); and
(e) Immigration
Ordinance and its subsidiary legislation (Cap. 115).
372. The
above ordinances provide for the treatment of inmates in the custody
of the Correctional Services Department and they also regulate the
conduct and discipline of both the staff and inmates. The treatment
of inmates, as provided for by such ordinances, is in conformity with
the United Nations Standard Minimum Rules for the Treatment of Prisoners.
Torture and other cruel, inhuman or degrading treatment or punishment
is strictly prohibited. The Commissioner of Correctional Services
and his appointed officers (superintendents and above) are empowered
to interrogate any person under his charge concerning any alleged
offence against discipline. Where appropriate, such cases are referred
to the police or other competent authorities.
373. Administrative
instructions and guidelines are established for the management of
institutions. These are incorporated in one or more of the following:
Departmental Standing Orders; Headquarters' Administrative Instructions;
and Institutional Job Descriptions. These instructions and guidelines
are regularly reviewed and revised and provide comprehensive procedures
for staff to follow in their day-to-day business. In conformity with
the relevant legislation, they also prohibit any acts of torture.
Any person in the Department who fails to comply with them is liable
to disciplinary or criminal proceedings, as appropriate.
374. Regular
reviews of legislation and policies are undertaken by the Department
in order to identify inappropriate rules or regulations with a view
to their eventual amendment or deletion. In the context of the prevention
of abuses such as acts of torture, particular attention is paid to
the need to ensure conformity with the Bill of Rights. It is also
routine practice for institutional management to arrange that body
checks on all inmates under custody are carried out by hospital officers
at least once weekly to detect signs of injury and skin infection.
Suspected acts of torture could therefore be detected at an early
stage. Similarly, regular contact and cooperation with other government
authorities have facilitated the prevention or early detection of
criminal activities, which might involve acts of torture, in Correctional
Services Department institutions. Visiting justices of the peace,
who are required by law to visit custodial and detention institutions
regularly, can also receive complaints and propose recommendations
and suggestions concerning these institutions.
375. The
Prison Rules state that prisoners awaiting trial shall be kept apart
from convicted prisoners. In addition, the Correctional Services Department
Standing Orders stipulate that special cells or dormitories shall
be set apart for prisoners awaiting trial.
376. Corporal
punishment is no longer imposed in any custodial institution in Hong
Kong. The Corporal Punishment Ordinance was repealed on 1 November
1990, and the sections of the Training Centre Ordinance and the Detention
Centres Ordinance which referred to caning were also repealed on 12
June 1990. Work is in hand to amend the Prison Rules to delete the
remaining references to corporal punishment. (As regards the abolition
of corporal punishment in schools, see paras. 428-429 below).
377. The
Independent Commission Against Corruption is a Commission established
by law to investigate suspected cases of corruption or related offences.
Its officers have power to arrest suspects and to detain them for
a limited period for the purpose of further inquiries. Persons detained
by the Commission are held in a purpose-built detention centre. The
detention centre staff, although officers of the Commission, are not
involved in the investigative work of the Commission. There is a separate
category of "guarding officer" whose duties are restricted
to the custody and welfare of detainees. The guards are answerable
to their own commander.
378. The
treatment of persons detained by the Commission is strictly controlled
by legislation in the form of the "Treatment of Detained Persons
Order"*. It can be seen from this Order that all rights and dignities
of persons detained are protected by law.
379. No person
may be detained under the power conferred on the Commission for more
than 48 hours. Before the end of that time any person so detained
must either be brought before a magistrate or released from detention.
In addition, visiting justices of the peace attend the premises of
the Commission twice a month in unscheduled visits to ensure that
the treatment of persons detained is in accordance with the law. The
justices enter any comments they have in a visiting justices report
book. These entries are forwarded verbatim by the head of operations
of the Commission to the Secretary for Constitutional Affairs, a senior
official of the Hong Kong Government. The visiting justices have the
absolute right to interview any person being detained by the Commission,
and can make recommendations concerning the detention centre.
380. The
Immigration Ordinance is kept under review to ensure its consistency
with the Bill of Rights. The Rules and Directions for the Questioning
of Suspects and the Taking of Statements which were promulgated in
1992 (see para. 370 above) and which apply equally to officials of
the Immigration Department as they do to the police ensure that written
statements and oral answers obtained from suspects are voluntarily
given and thus admissible in evidence.
381. The
treatment and custody of persons detained in immigration accommodation
are regularly reviewed to ensure compliance with the Bill of Rights.
382. The
Mental Health Ordinance defines and protects the rights of detained
patients. The criteria for compulsory detention are set out in the
Ordinance (see below) and are stringent. Even when these criteria
are met, the power to detain is not invoked except in cases where
all other means of providing for the patient's care and treatment
having been fully considered, detention in hospital is considered
the most appropriate means of providing the care and treatment which
he needs.
383. The
criteria set out in the Mental Health Ordinance for the compulsory
admission of a person to hospital for assessment or for treatment
for mental disorder are as follows. First, he must be suffering from
a mental disorder as defined by the Ordinance. Second, the mental
disorder must be of a nature or degree which makes admission to hospital
appropriate. Third, medical treatment must be necessary for his own
health or safety or for the protection of other persons. Fourth, the
treatment cannot be provided in some other way, e.g. on an out-patient
basis. In addition, offenders may be detained compulsorily under section
45 of the Mental Health Ordinance.
384. These
stringent criteria reflect the gravity of a situation in which a person
is deprived of his liberty. Whether they are judged to be satisfied
in any individual case is of course to be decided by the doctors and
other professionals concerned with the care of the patient.
385. Electro-convulsive
therapy is only administered with the patient's consent or a second
medical opinion, whilst all forms of treatment that could be considered
to be of an irreversible or hazardous nature (for example, psychosurgery)
always require the patient's consent as well as a second medical opinion.
All second opinions are given by doctors with higher professional
qualifications or with at least three years' continuous experience
in the speciality and who are appointed especially for that purpose
by the Secretary for Health and Welfare. Again, the type of treatment
given to a patient is a matter for the clinical judgement of his responsible
medical officer and clinical team.
386. The
relevant provisions dealing with persons detained following (or in
connection with) criminal proceedings are as follows. Under section
45 of the Mental Health Ordinance, the court may, if satisfied that
a convicted offender has been medically assessed to be suffering from
one of the forms of mental disorder defined in the Ordinance, by order
authorize his admission to, and detention in, a hospital for psychiatric
treatment if that is the most suitable method of disposing of his
case. Under section 52 of the Mental Health Ordinance, the Governor
may, by a transfer order, direct a mentally disordered prisoner who
is serving a sentence of imprisonment to be removed to and detained
in such mental hospital as is specified in the order for treatment.
Under section 53, the Governor may also make a transfer direction
in respect of a prisoner who is not serving a sentence of imprisonment,
e.g. a prisoner who has been remanded in custody awaiting trial or
sentence.
387. There
are important safeguards for detained patients. In particular, they
or their relative may apply to have the authority for their detention
reviewed by a Mental Health Review Tribunal, which is an independent
body. Usually a patient may apply for review at any time and if refused
he may apply again after 12 months or earlier with the leave of the
Tribunal. If he does not so apply his case will nevertheless be referred
to the Tribunal by the Medical Superintendent (if the patient is liable
to be detained in a mental hospital) or by the Commissioner for Correctional
Services (if the patient is liable to be detained in the Correctional
Services Department Psychiatric Centre) after 12 months. The Tribunal
has the power to discharge a patient, either absolutely or conditionally,
if certain criteria are met. This power does not normally apply to
any person who is serving a sentence of imprisonment pursuant to a
court order and who has been transferred to hospital during the period
of that sentence.
388. Other
safeguards for the rights of detained mental patients include the
following:
(a) All
detained patients must be given an explanation of their rights under
the Mental Health Ordinance. The matters covered must include the
procedures for securing their discharge, the conduct of their treatment,
how they can make a complaint and their rights in relation to Mental
Health Review Tribunals;
(b) Like
all other persons, detained patients are entitled, at their own expense,
to seek legal advice or a second opinion. A patient may be represented
before a Mental Health Review Tribunal by anyone he wishes, except
another patient;
(c) A relative
of every detained patient should be kept fully advised, unless the
patient objects, of the patient's rights.
Mental hospital
visitors (by tradition, the visiting justices of the peace), who are
required by law to visit hospitals regularly, can receive complaints
and make recommendations concerning the hospitals.
389. The
treatment of Vietnamese migrants in detention is subject to the detention
centres' rules which have been drawn up with full regard to the provisions
of the Bill of Rights. In addition, they have access to lawyers, non-governmental
organization workers and UNHCR field officers and they are also allowed
to be visited by other persons from time to time. There are also regular
visits to detention centres by justices of the peace, members of the
United Kingdom Parliament, Hong Kong legislative councillors, district
board members and journalists. The presence of UNHCR in the detention
centres also ensures that any maltreatment of the Vietnamese migrants
would be immediately brought to the attention of the proper authorities.
Article 12
390. It is
the duty of the police to investigate any alleged offence impartially,
quickly and effectively.
391. Any
person who alleges he has been tortured may go to the police. They
have all the necessary powers under the Police Force Ordinance and
other statutory provisions and under common law to conduct a thorough
investigation of any such allegation, and they would of course do
so. In addition, there are special arrangements, as described above
in relation to article 11 of the Convention, for the investigation
of allegations concerning the ill-treatment of persons in custody.
See also under article 13 below.
Article 13
392. As already
explained, anyone in Hong Kong may complain to the police or institute
civil proceedings if he claims that a public officer has ill-treated
him.
393. Like
the general public, persons detained in police custody have the right
to lodge a complaint to the Complaints Against Police Office, an internal
complaints mechanism within the police force, if they consider that
they have been improperly treated by any police officer. Although
there is no legal provision establishing the right to complain, the
Police General Orders, which are promulgated by the Commissioner of
Police under the authority of the Police Force Ordinance, lay down
detailed arrangements for handling complaints. To ensure impartiality
and fairness in all investigations of complaints, the Complaints Against
Police Office will prepare a case report for the endorsement of the
Police Complaints Committee. This is a non-statutory independent body
appointed by the Governor to monitor and review the investigations
by the Complaints Against Police Office. The Chairman and two Vice-Chairmen
of the Committee are executive councillors or legislative councillors.
Committee members include eight justices of the peace, the Attorney
General or his representative and the Commissioner for Administrative
Complaints.
394. The
main functions of the Police Complaints Committee are to monitor and
review the handling by the police of public complaints, to identify
faults in police procedures which lead to complaints, and, if necessary,
to make recommendations to the Governor. The members of the Committee
are supported by a full-time independent secretariat whose main function
is to reduce the workload directly falling on the members and to enhance
the Committee's monitoring role.
395. The
Committee publishes an annual report on the discharge of its functions
during the year. The report is submitted to the Governor and tabled
in the Legislative Council. The annual reports include summaries of
cases of interest, statistics on complaint case reports endorsed,
comments on existing complaints systems, etc.
396. After
the Committee's endorsement of a case report, the Complaints Against
Police Office will notify the complainant of the results and take
appropriate follow-up actions. In addition, remedial measures on procedural
matters recommended by the Committee will be undertaken by the police.
If an officer is found to have committed a criminal offence, appropriate
criminal proceedings will be taken. For other cases, appropriate disciplinary/
internal action will be taken by the Commissioner of Police.
397. To further
improve the monitoring system, it is planned to make the Police Complaints
Committee a statutory body.
398. In 1993,
3,374 complaints against the police were received. Over 97.7 per cent
of the complaints were made by persons either involved with or subjected
to police action. Complaints of assault, neglect of duty and conduct/manner
made up the majority of the complaints, 79.7 per cent in total. Investigations
into 3,520 cases were completed, of which 100 cases were substantiated,
34 cases classified as false and 2,338 cases were either withdrawn
or found not to be pursuable. A total of 17 police officers were disciplined
and 2 charged with offences as a result of the complaints. None was
charged with torture. In addition, 204 officers were subjected to
corrective action.
399. Complaints
procedures for prisoners are reviewed from time to time in the light
of experience and in keeping with changing circumstances. There are
a number of avenues for prisoners' complaints. Prominent notices and
information booklets are available in institutions to inform inmates
of their rights to lodge any complaints. A staff member or any inmate
may approach any of the following authorities to air any grievances
he may have, including any complaints of conduct which might constitute
torture or other cruel, inhuman or degrading treatment or punishment:
(a) The
Commissioner of Correctional Services and headquarters senior staff
who visit institutions on a regular basis;
(b) The
visiting justices of the peace who are required by law to visit an
institution fortnightly;
(c) The
institutional management;
(d) The
Complaints Investigation Unit of the Correctional Services Department;
(e) Other
external authorities such as the Commissioner for Administrative Complaints
(see para. 424 below), the Office of Members of the Legislative Council,
the police and the Independent Commission against Corruption.
400. Additionally,
staff and inmates have free access to the courts for the purpose of
bringing civil proceedings. They may also apply to the courts for
judicial review of the decisions made by the Correctional Services
Department, particularly on matters related to disciplinary hearings.
401. When
necessary, steps will be taken to ensure that the complainant and
witnesses are protected against all ill-treatment and intimidation
as a consequence of the complaint or any evidence given.
402. In 1992,
a total of 53 complaints were received from inmates complaining about
use of unnecessary force, threat and maltreatment by officers of the
Correctional Services Department. Six of them were substantiated,
all of them of a minor nature.
403. Any
complaints of ill-treatment lodged by a person in immigration custody
are brought to the attention of a senior immigration official and
investigated expeditiously and impartially. If there is prima facie
evidence of a criminal offence committed by an immigration officer,
the case is reported immediately to the police for further investigation.
404. In 1990-1992,
14 complaints alleging assault or threat were received. All of them
were found to be unsubstantiated.
405. Any
person who alleges that he has been ill-treated by a customs official
may complain to the Departmental Complaints Officer or to any member
of the Department, who will refer the complaint to the Departmental
Complaints Officer. There are specific instructions that all complaints
made by detainees should be properly recorded and reported. Complaints
which indicate the possible commission of a criminal offence will
eventually be referred to the police for criminal investigation.
406. In 1993,
seven complaints of assault were received. Six of them were found
unsubstantiated while the investigation of the remaining one is pending.
407. Any
person detained by the Independent Commission against Corruption is,
upon release from detention, asked if he has any complaints about
his treatment. He can either have his reply recorded for him or record
it himself on an "arrest/detention sheet". This arrest/detention
sheet is a document which records the full account of a detainee's
time in detention.
408. In addition
to recording a complaint on the arrest/detention sheet, any complaint
of ill-treatment can be made to the Commissioner himself, to the police,
to any legislative councillor or to the Independent Commission against
Corruption Complaints Committee. This is an independent committee
chaired by the Senior Member of the Executive Council and composed
of leading members of the community, including members of the Executive
Council and the Legislative Council, the Attorney General and the
Commissioner for Administrative Complaints.
409. As already
explained, assault and other unlawful violations of a person's physical
integrity or liberty are of course offences in Hong Kong. Any complaints
of such conduct made against officers of the Independent Commission
against Corruption are referred to the police for independent investigation.
A complainant may also take civil action in the courts against the
Commission or any of its officers.
410. In 1992,
only one complaint of assault was received. It was not substantiated.
411. If it
is alleged that a mentally ill patient has been ill-treated by any
public officer, a complaint can be lodged by the patient or his relatives/friends
with the medical superintendent of the mental hospital, or with one
of the visiting justices of the peace who, under the Mental Health
Ordinance, are required to pay monthly visits to the hospitals.
412. The
ill-treatment and/or wilful neglect of a mental health patient is
a criminal offence under the Mental Health Ordinance. Mental health
patients who claim to have sustained harm as a result of such conduct
may have recourse to the courts for civil redress.
Article 14
413. Under
the Crown Proceedings Ordinance (which is modelled on the Crown Proceedings
Act 1947 of the United Kingdom) a person who alleges that a civil
wrong (which would of course include an act of torture) has been committed
against him by a public official acting in the course of his employment
may bring an action for damages not only against the official in question
but also against the Hong Kong Government. The nationality or other
status (e.g. as a refugee) of the plaintiff is immaterial.
414. Under
the Criminal Procedure Ordinance, the courts in Hong Kong have the
power to order a convicted person to pay such compensation to any
aggrieved person as they consider reasonable. Again, the nationality
or other status of the aggrieved person would not be material.
415. Ex
gratia compensation is payable to victims of crimes of violence
or law enforcement under the Criminal and Law Enforcement Injuries
Compensation Scheme. This scheme, approved by the Executive Council
and implemented since 23 May 1973, is non-means-tested. Payments are
made from public funds.
416. For
the purpose of the scheme, compensation may be claimed for any injury
(whether physical or psychiatric) or death if the injury or death
results from any criminal offence involving the use of violence by
the assailant on the victim or from the use of a weapon by a law enforcement
officer in the course of his duty. A law enforcement officer means
any police officer or other public officer on duty.
417. All
residents of Hong Kong, including foreign nationals who have entered
Hong Kong legally, are covered by the scheme. Vietnamese refugees
are also covered.
418. The
scheme is administered by the Criminal Injuries Compensation Board
and the Law Enforcement Injuries Compensation Board. Application for
an award must be made in writing and is then considered by the relevant
Board which decides whether compensation is payable. The applicant
is notified of the Board's decision in writing. An appeal can then
be made to an ad hoc appeal board which is convened upon application.
Legal representation in the appeal may be allowed at the appellant's
own expense, subject to the approval of the individual appeal board.
419. If compensation
is awarded, it is paid in the form of a lump sum grant. In criminal
injuries cases it is based on the same rates of compensation as are
paid under the Emergency Relief Fund (currently ranging from HK$ 1,086
to HK$ 76,380). In law enforcement injuries cases, it is assessed
either on the basis of common law damages or in accordance with the
Emergency Relief Fund rates, whichever is the greater.
Article 15
420. At common
law, a confession by an accused person is inadmissible in evidence
in criminal proceedings where it appears to the court that the confession
was obtained by oppression. The term "oppression" could
include torture or cruel, inhuman or degrading treatment or punishment
or the threat thereof.
421. As explained
in paragraph 370 above, in late 1992 the Administration introduced
a new set of guidelines (the "Rules and Directions for the Questioning
of Suspects and the Taking of Statements") for law enforcement
agencies to follow. Their aim is to ensure that written statements
and oral answers obtained from suspects are voluntarily given and
admissible in evidence. As well as regulating how suspects may be
questioned and statements taken, the Rules and Directions also stipulate
the facilities that should be made available to persons in custody
or under investigation and that they should be informed of their rights
and of such facilities.
Article 16
422. The
preceding paragraphs of this report have dealt not only with torture
but also, as appropriate, with conduct which falls short of torture
but which may amount to cruel, inhuman or degrading treatment or punishment.
In many cases the same legislative provisions apply and the same preventive
or protective measures are available. In general, it may be said that
any cruel, inhuman or degrading treatment or punishment committed
by, at the instigation of, or with the consent or acquiescence of,
any public official or anyone acting in an official capacity would
cause grave concern, and the Government of Hong Kong would regard
such conduct as wholly to be condemned by appropriate criminal or
disciplinary sanctions.
423. The
Government is concerned that everyone acting in a public capacity
shall act according to the rule of law, and has accordingly put in
place a number of measures designed to prevent ill-treatment taking
place. Many of these have already been referred to in this report,
but it may be helpful to draw attention to certain features of the
system (and more generally, of the situation currently obtaining in
Hong Kong) that are of particular interest in this context.
424. The
Commissioner for Administrative Complaints is an independent authority
established under the Commissioner for Administrative Complaints Ordinance
to provide, for ordinary citizens, some means whereby an independent
person outside the public service can investigate, and report on,
grievances arising from administrative decisions, acts, recommendations
or omissions. The Commissioner has jurisdiction over all government
departments except the Royal Hong Kong Police Force and the Independent
Commission against Corruption. However, he is an ex officio
member of both the Police Complaints Committee and the Independent
Commission against Corruption Complaints Committee, which oversee
investigations into complaints made against members of the Royal Hong
Kong Police Force and the Independent Commission against Corruption
respectively (see paras. 393-397 and 408 above).
425. Police
disciplinary procedures are governed by the Police (Discipline) Regulations,
which were last overhauled in 1977. Under the Regulations, it is an
offence for a police officer to exercise unlawful or unnecessary authority
resulting in loss or injury to any other person. This covers incidents
where an officer without good or sufficient cause conducts a search,
or uses any unnecessary violence towards any person, or improperly
threatens any person.
426. Any
person alleging improper treatment can lodge a complaint with the
Complaints against Police Office. All investigations by that Office
are monitored by the Police Complaint Committee.
427. Members
of the public can lodge formal complaints against officers of the
Independent Commission against Corruption with the Commissioner personally,
the police, or any legislative councillor. Reports on all investigations
of such complaints will be considered by the Independent Commissioner
against Corruption Complaints Committee.
428. Before
20 September 1991, the Education Regulations, made under the Education
Ordinance, prohibited the administration of corporal punishment to
a female pupil, but allowed the principal of a school, or a teacher
authorized by the principal, to administer such punishment to a male
pupil. In 1990, the Education Commission, a high-level educational
advisory body, considered the question of corporal punishment in detail
and recommended that such punishment should be abolished entirely
in view of its harmful effect on children. The Government subsequently
accepted the recommendation and the Education Regulations were amended
accordingly.
429. Accordingly,
with effect from 20 September 1991, it is an offence for any teacher
to administer corporal punishment to a pupil. The maximum penalty
for the offence is a fine of HK$ 5,000 and one year's imprisonment.
During the school year 1992/93, there were four complaints about corporal
punishment in schools. Two of them were substantiated and warning
letters were issued to the staff concerned.
430. Public
concern over the problem of child abuse has been growing. There has
been considerable work to create a better legal framework as well
as interdisciplinary cooperation to provide supportive and rehabilitative
services for both the children concerned and the abusive parents.
Guidelines have been issued to various professions to facilitate detection
of abuse symptoms and early intervention.
431. Statutory
responsibility for the care and protection of children rests mainly
with the Director of Social Welfare and the Commissioner of Police.
The newly revised Protection of Children and Juveniles Ordinance (Cap.
213) provides, with effect from 1 November 1993, the legal framework
whereby the Government can take action to remove a child who is in
need of care or protection to a place of refuge. The changes made
include:
(a) The
revision of the meaning of "in need of care or protection"
to encompass the effects of psychological abuse or neglect;
(b) The
insertion of a child assessment procedure to enable the Director of
Social Welfare to observe the condition of, or to obtain a medical
or psychological or social assessment of, a child for the purpose
of determining whether or not the child is in need of care or protection;
(c) The
insertion of a provision under which, if the assessment notice has
not been complied with or cannot be served, the Director of Social
Welfare may remove the child for assessment. In such a case the child
may not be detained for more than 12 hours in the first place and
such further periods, not exceeding 36 hours in total, as, in the
opinion of the person carrying out the assessment (a medical practitioner
or a clinical psychologist or an approved social worker), is necessary
for the completion of the assessment. But this opinion has to be confirmed
by a second opinion from a similarly qualified person;
(d) A provision
requiring the Director of Social Welfare to make an application to
court within 48 hours for any removal or detention under the Ordinance;
(e) A provision
requiring the Director of Social Welfare to obtain a warrant issued
by a magistrate, juvenile court or district court to enter premises
by force for the purpose of removal of a child;
(f) A provision
revising the level of fines for offenders under the Ordinance, having
regard to present-day values.
432. Provisions
also exist in the Offences against the Person Ordinance (Cap. 212)
for the prosecution and punishment of persons who abuse children.
433. A Working
Group on Child Abuse was set up in 1983 to conduct a general review
of the handling of child abuse cases. The Working Group submitted
a report, in August 1983, which proposed 32 improvements covering
preventive education and publicity and training programmes for those
involved in the teaching, handling and helping of children as well
as the reporting and handling of child abuse cases. The Working Group
was reconvened in 1984 and 1985 in order to review the progress made.
A number of new recommendations were made. One of these was that a
multidisciplinary conference on child abuse should be convened. This
was done, by the Hong Kong Council of Social Service and the Hong
Kong Government, in December 1987 and it attracted 375 participants
from various professions including medical practitioners, social workers,
teachers, psychologists and police officers. The Working Group was
reconvened again in 1988 and in 1993. Strenuous efforts have been
made to prevent and combat the problem of child abuse as well as to
stress the need for love and concern for the proper growth of children.
434. On the
preventive side, public education on the provision of quality care
to children is channelled through the mass media, mass activities,
exhibitions, seminars, talks, pamphlets, posters, etc. The public
is also encouraged to report any suspected cases of abuse. A telephone
hotline is provided for this purpose.
435. Social
workers, both in the Government and the subvented sector, are trained
to detect and handle child abuse cases. In addition, the Government
also provides training for nursery workers, teachers, police officers,
nurses and medical students to help them understand the problem. To
better equip professionals with detection skills, a "Guide to
the Identification of Child Abuse" was published by the Government
in 1992 and was redistributed in 1993. A comprehensive set of guidelines
("Handling Procedures for Child Abuse Cases") for multidisciplinary
professionals was revised in line with the newly amended Protection
of Children and Juveniles Ordinance and is followed by all disciplines
to ensure a consistent approach to dealing with child abuse cases.
The division of responsibilities among professionals and the competent
authorities to deal with each step in the investigation are laid down
in the guidelines.
436. In the
actual handling of child abuse cases, rehabilitation services are
provided in the form of medical/psychiatric treatment, psychological
treatment and counselling, out-of-home care and other welfare services
as appropriate. Financial compensation under the Criminal and Law
Enforcement Injuries Compensation Scheme (see paras. 415-419 above)
is also available in confirmed cases of abuse which have been reported
to the police.
437. Arrangements
have also been made for the collection of more accurate data on cases
of reported child abuse. The Social Welfare Department keeps data
and monitors the number of child abuse cases referred either from
the voluntary sector or from within the service units under the Department.
At the end of June 1993, there has been a total of 477 child abuse
cases involving 526 children.
438. At present
children with inadequate care and protection may be put under the
care of residential homes operated either by the Government or by
non-governmental organizations. These homes provide child-care programmes
which include indoor and outdoor activities, educational programmes
both inside or outside the homes, and other vocational-skill training
programmes through extracurricular activities.
439. It is
the Social Welfare Department's policy not to use physical or mental
punishment to discipline children in residential homes. For homes
caring for children with behavioural problems, a points system is
adopted to reward good behaviour and deter misbehaviour by deducting
points gained. Guidelines and operation manuals are prepared for the
staff working in residential homes and training courses are held regularly,
to equip them better to carry out their duties professionally.
440. As regards
complaints and complaint procedures for children's homes under the
jurisdiction of the Social Welfare Department, the operation of each
of the residential homes is closely monitored by the Department. The
residential homes also work closely with the parents and the referring
workers on the welfare plan and training of the cases in the homes.
Any complaints of maltreatment can be made directly to the respective
superintendents, visiting officers or district social welfare officers
for investigation and, if they are substantiated, action will be taken
to rectify the situation. These arrangements ensure that complaints
are considered at the necessary high level.
441. All
homes run by the Government and some homes run by NGOs are also visited
regularly by justices of the peace. These visits are carried out without
prior warning so as to ensure that there is no covering up of any
malpractice in the operation of the homes. The visiting officers of
the Social Welfare Department are also required to visit the NGO homes
on a regular basis. So far, no complaint of maltreatment or excessive
punishment by residential homes has been reported by the justices
of the peace or visiting officers.
442. The
legal and administrative frameworks governing the operation of probation
service, community service orders service, reformatory school orders
service, remand service and places of refuge for young offenders are
the following:
(a) Persons
not placed under custody:
(i) Community
Service Orders Ordinance, Cap. 378;
(ii) Probation
of Offenders Ordinance and Probation of Offenders Rules, Cap. 298;
(iii) Manual
of Procedures, Community Service Orders Scheme;
(iv) Manual
of Procedures, Probation Service;
(b) Persons
placed under custody: The custody and treatment of persons placed
under custody in Social Welfare Department homes are legally governed
as follows:
Persons
By
Placed under
probation Probation of Offenders
order with
residential Ordinance and Probation
requirement
in probation of Offenders Rules,
home/hostel
Cap. 298
Placed under
reformatory Reformatory Schools
school order
Ordinance and Reformatory School Rules, Cap. 225
Placed under
detention Juvenile Offenders
in accordance
with Ordinance and Remand
S.15 (1)
(k) of Juvenile Home Rules, Cap. 226
Offenders
Ordinance
Placed under
remand Juvenile Offenders
pending
investigation by Ordinance and Remand Home
police,
trial or Rules, Cap. 226
sentence
443. Minimum
requirements regarding treatment, punishment and justices of peace
visits are set out in the Regulations and Rules made under the respective
Ordinances. In addition, the operation of all residential services
is governed by the Manual of Procedures, Residential Training Centres
for Young Offenders.
444. The
management of each service unit is the responsibility of the unit
officer-in-charge. He is supervised by and is accountable to a senior
officer at the senior social work officer level, who in turn is supervised
by and accountable to a chief social work officer. In addition to
social work training, probation officers and social workers in residential
services are provided with induction courses, refresher courses and
on-the-job training to ensure that they know the relevant legal requirements
and the expected standards of treatment for clients. The quality of
service is subject to checks by senior staff during visits to the
offices/institutions and in their direct contact with the clients.
A client or his relative may air grievances, including any which relate
to alleged acts of inhuman or degrading treatment or punishment, by
approaching the field management, the Director of Social Welfare or
other external persons or authorities such as the Commissioner for
Administrative Complaints, members of the Legislative Council or the
police.
445. As regards
clients placed under custody or residential training, the superintendent
of the residential unit is responsible for the management and operation
of the unit, assisted by an assistant superintendent and other unit
heads. The superintendent is himself supervised by and accountable
to a senior social work officer, who in turn is supervised by and
accountable to a chief social work officer. All the residential units
are placed under the headquarters' direct line management, to ensure
greater monitoring and efficiency. In addition, two justices of the
peace visit each residential unit monthly (date and time not announced
in advance) and their observation reports are forwarded to the policy
branch. They are empowered by law to interview any resident, and to
look into any issue concerning the residential unit.
446. Each
residential unit has a full-time registered nurse, and it is visited
weekly (once or twice depending on need) by a qualified and registered
medical practitioner. These medical and nursing officers are by profession
adequately trained to be able to quickly recognize any abnormal physical
sign of abuse. Residents receiving long-term training are allowed
visits by their family members and registered friends on a weekly
basis. Short-term residents are allowed visits on a daily basis. Such
regular and frequent contacts with family members and friends help
to ensure that if any resident has suffered any ill-treatment, it
will be readily exposed. Each residential unit is also regularly visited
by social work students supervised by training institute instructors,
and very large numbers of volunteers from universities and post-secondary
colleges. Residents are allowed to correspond with their parents and
friends by mail, which is uncensored. Such frequent contacts with
outside persons also help to ensure an enlightened, humane and open
operation.
447. As to
complaints and complaint procedures regarding offenders' homes, a
notice is prominently displayed in each office/residential unit to
inform the clients and their family members that they can lodge complaints
with the supervisor of the officer-in-charge of the unit or with the
Commissioner for Administrative Complaints. The name of the supervisor,
his telephone number and that of the Commissioner for Administrative
Complaints are printed on the notice.
448. Residents
are also at liberty to file complaints with any member of the district
boards, the Urban/Regional Council or the Legislative Council. Any
person can also file a complaint against any government department
with the office of the Commissioner for Administrative Complaints
(see para. 424 above).
449. Irrespective
of the channel through which a complaint of ill-treatment has been
pursued, it will be thoroughly investigated in accordance with the
relevant operational instructions, departmental complaints procedures
and legal requirements. The outcome of the investigation will be reported
to the complainant. If the complaint concerns conduct which is or
which may be a criminal offence, the matter is reported to the police
for them to investigate and, if appropriate, pursue. In other cases,
or where the police advise that criminal proceedings are not appropriate,
the matter is pursued and, if necessary, action is taken according
to the disciplinary procedures governing the civil service.
Montserrat
450. In general,
the position with respect to the implementation of the Convention
in Montserrat has not changed since the presentation of the initial
report in respect of the territory. Accordingly, it remains as stated
in that report, as amplified at the oral examination and as subsequently
supplemented in writing in CAT/C/9/Add.14. However, it can now be
reported, with reference to article 11 of the Convention, that
a revision of the Prison Rules is currently being undertaken: as previously
reported, the Police Interrogation Rules and Instructions are kept
under systematic review. The information contained in the initial
report can also be supplemented, with reference to article 13
of the Convention, by noting that section 92 of the Penal Code makes
it a criminal offence to interfere with a witness and, with reference
to article 14 of the Convention, by noting that section 28
of the Penal Code provides that any person who is convicted of an
offence may be adjudged to make compensation to any person who is
injured by his offence, such compensation to be either in addition
to or in substitution for any other punishment. Subject to the foregoing,
there are no new measures or new developments subsequent to the initial
report which should be drawn to the Committee's attention as likely
to have a bearing on the implementation of the Convention in the territory.
The Government of Montserrat continues at all times to seek to ensure
that the requirements of the Convention are scrupulously observed.
Pitcairn
451. No new
measures have been introduced, nor have any new developments taken
place, since the presentation of the initial report in respect of
Pitcairn that might have a bearing on the implementation of the Convention
in the territory. Accordingly, the position remains as stated in that
report, as amplified at the oral examination and as subsequently supplemented
in writing in CAT/C/9/Add.14. The Government of Pitcairn continues
at all times to seek to ensure that the requirements of the Convention
are scrupulously observed.
St. Helena
452. No new
measures have been introduced, nor have any new developments taken
place, since the presentation of the initial report in respect of
St. Helena that might have a bearing on the implementation of the
Convention in the territory. Accordingly, the position remains as
stated in that report, as amplified at the oral examination and as
subsequently supplemented in writing in CAT/C/9/Add.14. The Government
of St. Helena continues at all times to seek to ensure that the requirements
of the Convention are scrupulously observed.
Turks and Caicos Islands
453. No new
measures have been introduced, nor have any new developments taken
place, since the presentation of the initial report in respect of
the Turks and Caicos Islands that might have a bearing on the implementation
of the Convention in the territory. Accordingly, the position remains
as stated in that report, as amplified at the oral examination and
as subsequently supplemented in writing in CAT/C/9/Add.14. The Government
of the Turks and Caicos Islands continues at all times to seek to
ensure that the requirements of the Convention are scrupulously observed.
Appendices
I. LIST OF DOCUMENTS REFERRED TO IN THE REPORT
A. Acts of Parliament
Offences
against the Person Act 1861
Geneva Conventions
Act 1957
Children
and Young Persons Act (Northern Ireland) 1968
Social Work
(Scotland) Act 1968
Immigration
Act 1971
Criminal
Procedure (Scotland) Act 1975
Mental Health
Act 1983
Mental Health
(Scotland) Act 1984
Police and
Criminal Evidence Act 1984
Education
Acts 1986 (No. 2) and 1993
Criminal
Justice Acts 1988 and 1991
Children
Act 1989
Extradition
Act 1989
Prevention
of Terrorism (Temporary Provisions) Act 1989
Criminal
Justice (International Cooperation) Act 1991
Northern
Ireland (Emergency Provisions) Act 1991
Asylum and
Immigration Appeals Act 1993
Police and
Magistrates' Courts Act 1994
Criminal
Justice and Public Order Act 1994
B. Other legislation
Scottish
Prison Rules 1952
Police (Discipline)
(Scotland) Regulations 1967
Immigration
Rules made under the Immigration Act 1971
Northern
Ireland Prison Rules 1982
Mental Health
(Northern Ireland) Order 1986
Police (Northern
Ireland) Order 1987
Criminal
Injuries (Compensation) (Northern Ireland) Order 1988
Police and
Criminal Evidence (Northern Ireland) Order 1989
Police and
Criminal Evidence Act 1984 (Tape Recording of Interviews) Orders 1991
Asylum Appeals
(Procedure) Rules 1993
C. Other documents
Report by
the European Committee for the Prevention of Torture on its visit
to
Great Britain in 1990
Report by
the European Committee for the Prevention of Torture on its visit
to
Northern Ireland in 1993
Codes of
Practice (A to E) issued under the Police and Criminal Evidence Act
1984
Codes of
Practice issued under the Police and Criminal Evidence (Northern Ireland)
Order 1989
Codes of
Practice issued under the Northern Ireland (Emergency Provisions)
Act 1991
Report of
the Committee of Inquiry into Police Interrogation Procedures in Northern
Ireland (1979)
Annual Report
of the Independent Commissioner for the Holding Centres
White Paper:
"Custody, Care and Justice" (Cm 1647) (September 1991)
Report by
Lord Woolf into prison disturbances in England and Wales in 1990
Annual Report
of the Inspectorate of Prisons in England and Wales
Instruction
to prison governors in England and Wales and guidance pack on caring
for the suicidal in custody (February 1994)
Prison Service
Code of Discipline in England and Wales
Annual Report
of the Commissioner of the London Metropolitan Police
Annual Report
of the Police Complaints Authority
Annual Report
of the Chief Constable of the Royal Ulster Constabulary
Annual Report
of the Independent Commission for Police Complaints for Northern Ireland
Guidance
on how to make a complaint against a member of the armed forces in
Northern Ireland
Annual Report
of the Independent Assessor of Military Complaints Procedures in Northern
Ireland
Annual Report
of the Children Act Advisory Committee
White Paper:
"Scotland's Children: Proposals for Child Care Policy and Law"
(Cm 2286) (August 1993)
"Working
Together under the Children Act 1989" - child protection guidance
for England and Wales
"Cooperating
to Protect Children" - child protection guidance for Northern
Ireland
II. LIST OF ANNEXES*
Annex A -
Texts of the United Kingdom legislation on torture
Annex B -
Codes of Practice issued under the Northern Ireland (Emergency Provisions)
Act 1991
Annex C -
First Annual Report of the Independent Commissioner for the Holding
Centres (January 1994)
Annex D -
Instruction to prison governors in England and Wales and guidance
pack on caring for the suicidal in custody (February 1994)
Annex E -
Guidance on how to make a complaint against a member of the armed
forces in Northern Ireland
Annex F -
First Annual Report of the Independent Assessor of Military Complaints
Procedures in Northern Ireland (May 1994)
-----
* These
documents, which have been received from the British Government, may
be consulted in the files of the United Nations Centre for Human Rights.