Last month in the high court in London, in a case described by the judge as ’disturbing’, four people were found to have been unlawfully detained by the Home Office.

The people in this case were all victims of torture and the Home Office should not have detained them. The government’s Detention Centre Rules are clear — Rule 35 says that “medical practitioners are required to report to the Border Agency any detainee whose health is likely to be injuriously affected by detention or any condition of detention and any detainee they are concerned may be a victim of torture.” [1]

Reviewing Rule 35 last September, the House of Commons Home Affairs Committee were told that 231 reports were made under Rule 35 to the Border Agency in the third quarter of 2012 [2], but only 13 reports (6 per cent) resulted in the individual being released. In the second quarter of 2012 only 5 per cent of Rule 35 reports resulted in the individual being released.

Rob Whiteman, the UK Border Agency chief executive, was asked by the Home Affairs Committee on 18 September 2012 why the figures were so low? He replied that the Agency took Rule 35 reports “very seriously”. But, he explained, the reason so few reports resulted in release was because detainees could “refer themselves” under Rule 35 “as could their legal team”.

But the Committee discovered that this explanation contradicted both the Detention Centre Rules and the Agency’s own guidance on them, which state quite clearly that: “Rule 35 reports should be prepared and submitted by medical practitioners only”. So, if the head of UKBA doesn’t understand his own rules it is perhaps not surprising that they are frequently flouted, as Dr Frank Arnold has reported here on OurKingdom.

Written evidence was provided to the court by the charity Medical Justice on the Agency’s repeated failure to follow Rule 35. I provided written evidence on behalf of the Helen Bamber Foundation on policy and practice in torture cases. Helen Bamber made a statement describing what torture means to someone who has been tortured.

Before the case began, the Home Office asked the court to define torture. Their barrister argued that ill-treatment can be torture only if it is carried out “by or with the consent or acquiescence” of a public official. This is the definition given in Article 1 of the UN Convention Against Torture [3].

If the court had accepted that this was the meaning of torture intended in the Detention Centre Rules the effect would have been to allow the Home Office to detain many more people who have sought asylum after they had been ill-treated in their own country if they could not prove that their own Government had tortured them or ordered their torture or if a ’private party’ had tortured them, as is always the case in domestic violence cases and very often so in trafficking cases. In other words, criminals are not ’agents of the state’. The judge ruled that the Home Office interpretation of torture for the purposes of the Detention Centre Rules was wrong.

In my written evidence to the court, I was able to explain that “torture” had never been understood by the voluntary sector or the Home Office to mean anything other than serious harm in the broadest sense. The judge agreed that, “There is no reason to suppose that Mr Rhys Jones’s assessment to the contrary is wrong.” In other words the identity of the perpetrator is irrelevant. “I can detect no reason of sufficient weight,” said the judge, “to depart from what I consider to have been the common understanding of the meaning of the word ’torture’ for these purposes.”

The Home Office barrister had argued that Rule 35 was intended to safeguard only those who had been tortured by their own government because the Home Office understood that such people would not cope with being detained again in the UK. The medical director of the Helen Bamber Foundation, professor of psychiatry Cornelius Katona, said that, “Many torture victims who have subsequently been held in immigration detention in the UK have intrusive thoughts, nightmares and flashbacks related to their immigration detention that are as distressing (sometimes more distressing) than their re-experiencing of their past torture.” The judge accepted that if one read Professor Katona’s evidence with Helen Bamber’s it was clear that he was not talking exclusively about those who had been tortured in prisons.

The judge also accepted Helen Bamber’s written evidence, that, “the identity of the perpetrator is of little consequence.” Importantly, he added, “she concludes that there is no significant difference between the therapeutic needs of victims of torture in the (formal) sense, or the wider sense.”

Helen Bamber has almost 70 years experience in working with traumatised people. In 1945 she was appointed to one of the first rehabilitation teams to enter Bergen Belsen concentration camp with the Jewish Relief Unit, aiding the physical and psychological recovery of many of that camp’s 20,000 Holocaust survivors. The judge said she had unrivalled experience and expertise in this field.

The judge looked carefully at Article 1 of the UN Convention Against Torture when deciding the proper definition to be applied to Rule 35. He agreed that torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, ...” But he ended quoting from Article 1 there.

Importantly he did not include the next clause of Article 1 which says that torture can only have taken place, “when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” By leaving out this second clause of the definition of torture the judge recognised that the Home Office had never before tried to describe torture, for Rule 35 purposes, in this way when deciding whether or not to detain asylum seekers.

Extreme Inter-personal violence as Torture

In her written evidence Helen Bamber explained why the identity of the torturer has little to do with the therapy survivors receive at the Helen Bamber Foundation.

“In the cases we take on cruelty is rarely mindless; there is usually a focus to it. However, in working therapeutically with victims of ill-treatment the most critical element is the effect of that ill-treatment upon them rather than the purpose for which it was inflicted.”

Bamber gave the court some examples drawn from her own cases:

“a young girl forced onto the streets by her carer for infringing the local moral code (an orphan, pregnant and unwed) hides under an awning at night; she is beaten, raped and cut by a gang of young men. They did not know her personally, but in that country her situation made her vulnerable and gave them power over her. That was enough for them to act in the way they did.”

In Helen Bamber’s experience “there is little difference between the psychological effect upon such a person compared to a person placed in a cell and raped and beaten by agents of the state.”

“The girl under the awning, a person in a prison cell or a wife beaten to unconsciousness by her sadistic husband may all ask themselves ‘why me?’ In other words, why had this happened to them and what was the perpetrators’ purpose?” Over her long career Bamber has come to understand that the origins of cruelty and “the answer to the question ’why me?’, lie in a person’s vulnerability to being cruelly treated” and not who treated them cruelly. We need to understand “why the girl was under the awning that night, why that person was in prison, why did the woman remain in the household of the sadist whom she married?” And the answer is almost invariably that these events arose from “specific social, economic and political circumstances in their own countries”.

Identity of the perpetrator

Leigh Day were the solicitors acting for the ex-detainees in the case of the four people found to have been unlawfully detained by the Home Office — EO, RA, CE, OE and RAN v SSHD [2013] EWHC 1236 (Admin) [4]; (the case of RA was settled before the case was heard). Leigh Day asked Ms Bamber to explain in her written evidence whether it is ever possible to distinguish the effect of violent actions according to the identity of the perpetrator?

She replied that the important factors common to all extreme inter-personal violence are aggression and power. She quoted Human Aggression by Anthony Storr (first published in 1968):

“Aggression is a drive as innate, as natural, and as powerful as sex, and the theory that aggression is nothing but a response to frustration is no longer tenable in the light of biological research ... in man, as in other animals, the aggressive drive is an inherited constant, of which we cannot rid ourselves, and which is absolutely necessary for survival.”

“If not channelled productively aggression is merely an outward manifestation of power” said Bamber, and, she explained, “power plus helplessness are the essential components of torture.” Indeed, torture is described as “learned helplessness” by Martin Seligman, a former president of the American Psychological Association who gave a three hour talk on the subject at the Navy SERE school in San Diego in May 2002, with CIA interrogators among the audience [5].

At the Helen Bamber Foundation we know that the result of aggressively wielded power is often physical injury and/or profound and complex psychiatric injury. Many physical injuries do heal over time, but mental damage does not always respond, despite treatment. Ms Bamber explained in her written evidence that, “This can be because the individual has now learned to identify herself as a victim who remains unable to defend herself or have anyone to defend her.”

Thus we have come to understand that the nature of the power to harm is complex; “it is about what is permitted, allowed, encouraged or acquiesced in” and that the gang who abused the girl under the awning, the prison guards and the sadistic husband all act with impunity and/or authority. Aggression and power are not dependent upon the identity of the perpetrator.

Indeed victims may regard themselves as “responsible for the harm done to them because they are worthless, untermensch, dirty, filthy, verminous.” Bamber explained that in her long experience these terms resonate from “the pogroms and the holocaust, but have, in our experience, been applied more recently to under classes such as street children in Latin America, Muslims in Bosnia, Roma in middle Europe and women without male protectors in many parts of the world today.” Bamber wrote that “When the thinkers and the elite are tortured it is also because they are regarded as something other, something outside, threats to the normal order.” What is the essence of all of these relationships is the “exertion of aggressive power”.

“To kill a man without his dying” — this is how one survivor described his torture. Many of those we treat at the Helen Bamber Foundation believe that they were intended to be destroyed or annihilated. Those thoughts remain through suicidal thoughts, questions about why they are still alive and a foreshortened sense of their own future.

Therapeutic needs

Helen Bamber was asked by Leigh Day solicitors whether there are differences in the therapeutic needs of victims determined by the identity and motive of the perpetrator? She replied in her witness statement that “the girl under the awning, the wife described above, have the same therapeutic needs as the man or woman ill-treated by the agents of the state in a place of detention.” Bamber explained that they have all “suffered severe physical and mental pain or suffering and continue to suffer as a consequence. The circumstances and the individual needs of each person may be different, but the issues in every case are the infliction of cruelty through power and helplessness.”

Torture as we commonly understand it goes on all over the world. It is carried out by many different people on many men, women and children in many different places for many purposes.

To our collective shame the torture chamber still exists, but gross violence such as rape and serious psychological violence against women is torture. Sustained violence in the home against women and children can be understood as torture. Victims of trafficking, ill-treated and abused, can be said to have been tortured. Such people need international protection and some of them arrive in this country. We welcome this judgment, because torture is torture no matter who is doing it.

David Rhys Jones

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