¹ This is a revised version of the Essex Law Lecture 2004 given in association with Clifford Chance on 28 January 2004. I am grateful to my Judicial Assistants, Emma Parker and Joanne Clement, for their help in preparing this lecture and to Dr Clare Jackson, Trinity Hall, Cambridge for allowing me to see her paper on judicial torture in late seventeenth-century Scotland prior to its publication: Judicial Torture and the Liberties of the Subject in Restoration Scotland, forthcoming, in TC Smout (ed) Anglo-Scottish Relations, 1603–1914 (Proceedings of the British Academy 2004/5).

² Ireland v United Kingdom (1979–1980) 2 EHRR 25, para 167.Google Scholar

³ JH, LangbeinTorture and the Law of Proof: Europe and England in the Ancien Regime (University of Chicago Press 1977) at 3, asserts that no punishment, no matter how gruesome, should be called torture; see also Art 1(1) of the Convention against Torture 1984: ‘It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’Google Scholar

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⁶ Langbein op cit at 94.Google Scholar

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⁸ The death penalty for high treason was abolished by s 36 of the Crime and Disorder Act 1998.Google Scholar

⁹ SirCoke, EdwardThe Institutes of the Laws of England Part 3 34–5.Google Scholar

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¹¹ AL, LowellThe Judicial Use of Torture (1897) Harvard Law Review 220.Google Scholar

¹² Digest 48.18.5.Google Scholar

¹³ The Papal Bull ad extirpanda was designed to compel heretics by measures short of maim or danger to life to confess their own error and to accuse other heretics.Google Scholar

¹⁴ Examination under torture was permitted only where the court was satisfied that there were sufficient grounds for it: Langbein op cit at 4–5. The principles of the Roman-canonical law are described by Heath op cit at 30–1.Google Scholar

¹⁵ A list of the dates when torture was abolished, State by State, by law in Europe is given by BP, LevackJudicial Torture during the Age of Mackenzie (EdinburghThe Stair Society Miscellany IV 2002) at 187, n 20.Google Scholar

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¹⁹ Ibid at 81 accepts that the inference is inescapable that some use of torture predates the commencement in 1540 of the issuing of warrants for its use by the Privy Council.

²⁰ He later fell out of favour, was charged with treason and executed at Tower Hill on 28 July 1540.Google Scholar

²¹ Langbein op cit at 73.Google Scholar

²² 16 Charles 1, c 10. The Bill, which abolished the Star Chamber, was introduced in March 1641 (according to the old calendar) and was passed later in the same year.Google Scholar

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²⁴ TC, SmoutA History of the Scottish People, 1560–1830 (LondonCoffins 1969) at 66.Google Scholar

²⁵ In December 1690 Henry Neville Payne, an Englishman, was taken from England to Scotland, under pressure from London, to be tortured there: see C, Jackson Judicial Torture and the Liberties of the Subject in Restoration Scotland (n 1 above) for a detailed account of this incident.Google Scholar

²⁶ 7 Anne c 21, para viii.Google Scholar

²⁷ BP, Levackop cit at 187 n 20, points out that by this statute Scotland became the first country in Europe in which torture was abolished by law.Google Scholar

²⁸ Hume, Commentaries on the Law of Scotland respecting Crimes (EdinburghBell & Bradfute 1844) vol 2 at 319–23.Google Scholar

²⁹ Ibid at 383. The safeguards which were introduced for the protection of the accused during the eighteenth century are described by ID Willock The Jury in Scotland (Edinburgh The Stair Society 1966), at 199; see also Smith v Lees, 1997 JC 73.

³⁰ Hume op cit vol 1 at 541–2.Google Scholar

³¹ Ibid vol 2 at 321.

³² Willock op cit at 198.Google Scholar

³³ Levack op cit at 185.Google Scholar

³⁴ It seems to have been unique to Scotland: see Chambers Encyclopaedia, vol 2, Boot, Boots or Bootikin.Google Scholar

³⁵ Willock op cit at 199.Google Scholar

³⁶ RD, Blackmore Lorna Doone ch xxxvi, refers to the Duke of York, as he then was, ‘trying boots in Scotland’.Google Scholar

³⁷ Hume op cit vol 1 at 591–2; Levack op cit at 195.Google Scholar

³⁸ Entitled Decisions of the Lords of Council and Session from June 6th 1678 to July 30th 1712, containing also the Transactions of the Privy Council, of the Criminal Court and Court of Exchequer, and interspersed with a Variety of Historical Facts and many curious Anecdotes published from the original manuscript in the Library of the Faculty of Advocates (Edinburgh 1759).Google Scholar

³⁹ The ninth Earl of Argyll was opposed to the Stuart rule in Scotland. He had been sentenced to death in 1681 for treason but fled to the Netherlands. He launched a rebellion from there and invaded Scotland with about 3000 men in 1685. But he was unable to obtain sufficient support, was captured and executed.Google Scholar

⁴⁰ Fountainhall's Decisions vol I 299–301; Hume op cit vol I, at 542.Google Scholar

⁴¹ Seen 39.Google Scholar

⁴² See Jackson op cit for a detailed account.Google Scholar

⁴³ His name is spelt ‘Carstares’ in other records: eg APS, vol ix at 192a; see Levack op cit at 191 n 41 and Jackson op cit. I have adopted the spelling which was used by Fountainhall.Google Scholar

⁴⁴ Fountainhall's Decisions vol I 302–3.Google Scholar

⁴⁵ ‘A blot on one's character, slur, stigma’: The Concise Scots Dictionary (Aberdeen University Press 1985).Google Scholar

⁴⁶ Fountain hall's Decisions vol I 324–6.Google Scholar

⁴⁷ TC, Smout A History of the Scottish People, 1560–1830, at 108.Google Scholar

⁴⁸ Ibid, at 326. This was the 3rd Earl, who was appointed a Privy Counsellor in 1682.

⁴⁹ Introduction to Scottish Legal History (EdinburghThe Stair Society 1958), at 441.Google Scholar

⁵⁰ Brother of Charles II, who became King James II in 1685.Google Scholar

⁵¹ This is a reference to the festival of Christmas.Google Scholar

⁵² Hume op tit vol 2 at 323.Google Scholar

⁵³ Tosoch (1634), Hume op cit vol 2 at 323.Google Scholar

⁵⁴ Sprott (1608), Maxwell (1619), and Muir (1611), Hume op cit vol 2 at 324Google Scholar

⁵⁵ Fountainhall's Decisions vol I at 141; Hume op tit vol 1 at 542, vol 2 at 324.Google Scholar

⁵⁶ James Sharp, Archbishop of St Andrews, was assassinated by Covenanters in 1679.Google Scholar

⁵⁷ The Bass Rock, in the Firth of Forth, was used as a prison during this period.Google Scholar

⁵⁸ Baillie, (1684), Hume op cit vol 2, 324, who was convicted on the confession of William Carstairs.Google Scholar

⁵⁹ Baillie, , Fountainhall's Decisions vol I at 324.Google Scholar

⁶⁰ Erskine, An Institute of the Law of Scotland (EdinburghBell & Bradfute Nicolson's edn 1871) ii, iv, 96.Google Scholar

⁶¹ The ‘pannell’, in Scots legal terminology, was the place of arraignment in a court; the word came to be used to refer to the prisoner at the bar, the accused.Google Scholar

⁶² Hume op tit vol 1 at 543.Google Scholar

⁶³ Levack op cit at 187 n 20.Google Scholar

⁶⁴ (1953) (Cmnd 8689), now incorporated into domestic law by s 1 of the Human Rights Act 1998.Google Scholar

⁶⁵ Resolution 217A(m) (Cmd 7662).Google Scholar

⁶⁶ Adopted by the Ninth International Conference of American States on 2 May 1948.Google Scholar

⁶⁷ Adopted by a resolution of the General Assembly of the United Nations on 16 Dec 1966.Google Scholar

⁶⁸ Signed at San Jose, Costa Rica on 22 Nov 1969.Google Scholar

⁶⁹ Enacted by the Constitution Act 1982, Part I.Google Scholar

⁷⁰ Note the use of the word ‘and’ in the US and Canadian documents. The word ‘or’ is used in the Universal Declaration and in the European Convention.Google Scholar

⁷¹ Ingraham v Wright 430 US 651, 664 (1977).Google Scholar

⁷² Higgs v Minister of National Security [2000] 2 AC 288, 261.Google Scholar

⁷³ Filáriiga v Peña-Irala 630 F 2d 876 (2nd Cir 1980).Google Scholar

⁷⁴ Cm 1775.Google Scholar

⁷⁵ See R v Bow Street Metropolitan Stipendiary Magistrate, ex parie Pinochet Ugarte (No 3) [2000] 1 AC 147.Google Scholar

⁷⁶ NS, Rodley ‘The Definition(s) of Torture in International Law’ (2002) 55 Current Legal Problems 467, 468.Google Scholar

⁷⁷ AM, DershowitzWhy Terrorism Works (Yale University Press 2002) at 136. Amendment Vin (1791) provides that cruel and unusual punishment shall not be inflicted.Google Scholar

⁷⁸ Eg Ireland v United Kingdom (1979–80) 2 EHRR 25, para 167; Selmouni v France (1999) 29 EHRR 403, para 96; Akko v Turkey (2001) 35 EHRR 51, para 115.Google Scholar

⁷⁹ ‘The third degree’ is an expression which is applied to the severe and prolonged cross-questioning of the suspect. It was coined in the United States. According to Wigmore, an officer of the law administers the first degree when he makes the arrest, the second degree when the prisoner is taken to a place of confinement and the third degree when he is taken to private quarters and interrogated.Google Scholar

⁸⁰ Ireland v United Kingdom (1979–80) 2 EHRR 25.Google Scholar

⁸¹ Selmouni v France (1999) 29 EHRR 403, para 10.Google Scholar

⁸² Rodley op cit at 477.Google Scholar

⁸³ Ibid at 489–90.

⁸⁴ Dershowitz op cit at 124.Google Scholar

⁸⁵ These facts are taken from the brochure ‘A World without Torture … ’ published by the International Rehabilitation Council for Torture Victims, Copenhagen, Denmark.Google Scholar

⁸⁶ See, eg, Written Answer, Syria: Human Rights, 15 Jan 2004 (Hansard, vol 656, HL Debates, col WA 100).Google Scholar

⁸⁷ R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147.Google Scholar

⁸⁸ [2000] 1 AC 147,226–9.Google Scholar

⁸⁹ Between 1540 and 1640 it was administered 101 times in England, and there were thirtynine Privy Council warrants for its use in Scotland between 1590 and 1690: Levack op cit at 191, 194Google Scholar

⁹⁰ Redress The Reparation Report Issue 2, Nov 2003; see also Sunday Times 7 Dec 2003.Google Scholar

⁹¹ Al-Adsani v United Kingdom (2002) 34 EHRR 11.Google Scholar

⁹² Guantanamo Bay: The Legal Black Hole, 27th FA Mann Lecture, 25 11 2003: (2004) 53 ICLQ 1.Google Scholar

⁹³ On 28 June 2003 the Supreme Court held that United States courts have jurisdiction to consider challenges to the legality of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay: Rasul et al v Bush, President of the United States, etc (Rasul v Bush 321 F 3d 1134, reversed).Google Scholar

⁹⁴ Ibid at 8.

⁹⁵ Ibid.

⁹⁶ On 9 Mar 2004 five of the nine British subjects who were detained at Guantanamo Bay arrived back in the United Kingdom. They were taken to Paddington Green police station but were later released without charge. They have alleged that they were subjected to psychological torture and chained to a metal ring on the floor while they were being interrogated. A spokesman for the US authorities has stated that the detainees are being treated in a fair way according to the Geneva Convention.Google Scholar

⁹⁷ He was later to become Lord Lloyd of Berwick on his appointment as a Lord of Appeal in Ordinary.Google Scholar

⁹⁸ D, HurdMemoirs (London Little, Brown 2003) at 111.Google Scholar

⁹⁹ See n 4.Google Scholar

¹⁰⁰ Supreme Court of Israel, sitting as the High Court of Justice, HC 5100/94 and Others, 6 Sept 1999.Google Scholar

¹⁰¹ Para 39.Google Scholar

¹⁰² Para 23.Google Scholar

¹⁰³ Unfortunately there is little sign so far that the legislature is willing to take the initiative that the Supreme Court entrusted to it.Google Scholar