IPCO Annual Report 2017
12. Consolidated Guidance
Definition and process
12.1
The Consolidated Guidance sets out the principles governing the interviewing of detainees
overseas, together with the passing and receipt of intelligence relating to them. The Guidance
seeks to ensure that decisions in this context are consistent with UK and international law.
Principally, the Guidance reflects concerns about the use of torture, and cruel, inhuman
and degrading treatment (CIDT), as well as the general standards of arrest, detention
and treatment.
12.2
The Consolidated Guidance covers an area, therefore, in which both the detainee and
individual officers face wholly different risks: the detainee of unacceptable treatment and
the officers of legal liability for any unlawful treatment of the former. By way of a stark
example, if an officer is involved in a case in which the detainee is tortured, he or she could
face civil or criminal proceedings for what occurred. The Guidance expresses the view that
if officers act in accordance with its provisions, they have good reason to be confident that
they will not be at risk of personal liability.
12.3
The Guidance applies most particularly if the officer knows or believes torture or CIDT
will take place, or if he or she judges there is a serious risk of torture or CIDT. In the first
instance (knowledge or belief), the officer must remain uninvolved, and the relevant
Ministers need to be informed. In the second instance (there is a serious risk of torture or
CIDT), the officer must not be involved unless the risk can be mitigated below the threshold
of serious risk. If the risk cannot be mitigated in this way, the relevant Ministers must be
informed and provided with all the relevant information. The Ministers will then consider
all of the circumstances and decide whether or not to proceed. If the risk is lower than a
serious risk of torture or CIDT, the officer can proceed, keeping the situation under review.
12.4
In reality, intelligence and military personnel apply the Guidance cautiously. The Guidance
is sometimes invoked when an individual could plausibly be detained on the basis of
intelligence passed to another country. By way of example, if an officer asks an intelligence
agency of a foreign state for information about a citizen of that state, or wishes to inform the
foreign intelligence agency of a possible threat from someone inside that country, then the
Consolidated Guidance may be considered irrespective of whether there is a request or a
plan to detain that particular individual. Indeed, in some cases inspected by IPCO, it was
apparent there was no credible expectation that the individual would be detained, or that
the information could support such a move. Indeed, on occasion, the Guidance was applied
when the relevant individual was not located in the relevant foreign country at the time of
the exchange of intelligence. In other cases, the communication has related to an individual
who is being detained abroad in any event or is due to be arrested in accordance with the
legislation of that country.
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