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Repeal Section 135 of the Criminal Justice Act 1988

Comment 19th August 2010

Section 135 of the Criminal Justice Act 1998 reads: 

135 Requirement of Attorney General’s consent for prosecutions

Proceedings for an offence under section 134 above shall not be begun—

(a) in England and Wales, except by, or with the consent of, the  Attorney General; or

(b) in Northern Ireland, except by, or with the consent of, the Attorney General for Northern Ireland.

 

Section 134 (mentioned in the above Section) reads:

 (1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

 (2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if—

(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence— .

                (i) of a public official; or .

                (ii) of a person acting in an official capacity; and .

(b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or  consents to or acquiesces in it. .

 (3) It is immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or an omission.

 (4) It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.

(5) For the purposes of this section “lawful authority, justification or excuse” means—

(a) in relation to pain or suffering inflicted in the United Kingdom,  lawful authority, justification or excuse under the law of the part of  the United Kingdom where it was inflicted; .

(b) in relation to pain or suffering inflicted outside the United Kingdom—

(i) if it was inflicted by a United Kingdom official acting under the law of the United Kingdom or by a person acting in an official capacity under that law, lawful authority, justification or                excuse under that law;

 (ii) if it was inflicted by a United Kingdom official acting under the law of any part of the United Kingdom or by a person acting in an official capacity under such law, lawful authority, justification or excuse under the law of the part of the United Kingdom under whose law he was acting; and

(iii) in any other case, lawful authority, justification or excuse under the law of the place where it was inflicted.

 (6) A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.

It is entirely wrong that the determination as to whether a person who has committed or procured torture could escape prosecution for that sickening and wholly abhorrent crime at the whim of a politician whose first loyalty is always to the political party of which they are a member.

 It should be a matter for an independent Judge (preferably one sitting in the High Court) to determine whether or not there is a case to answer and if there is a case to answer to ensure that the person charged with torturing any other person is prosecuted to the fullest extent of the law irrespective of that person’s position or the particular branch of government they work for.

 The rule of law should be absolute and applied consistently to everyone – especially when something so vile and inexcusable as torture is concerned.

There is a worrying trend that people consider it acceptable to torture others under the auspices of ‘security’ or ‘defence’ or ‘anti-terrorism’.

Torture is cowardly, inexcusable and indefensible and anyone who carries it out or who aids, abets, counsels or procures it should be dealt with most severely.

Why does this matter?

This is important because politicians cannot be trusted to act in the best interests of the individual and because no one should be subjected to torture and those who are and survive should not then have to face the injustice of seeing their torturers being allowed to walk free simply because they happen to work for the state.

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