Ancient and Modern – 27 August 2004

Is evidence obtained under torture admissible in this country? Yes, argues Lord Justice Laws, as long as it comes from a state where Home Secretary David Blunkett has no powers to stop it, and he does not ‘promote’ or ‘connive at’ it.

The ancients understood perfectly well that the value of evidence from torture could be flimsy, especially when it was to be used against other people (evidence from slaves under torture against their masters was not accepted by Romans, unless, for example, treason was involved). But this did not stop them using it far more widely than we ever would.

There is, however, another principle at work. The notoriously severe Cassius Longinus (c. 140 bc) — famous for formulating cui bono? — said, ‘There is an element of injustice in every major precedent, but the public interest outweighs that of individuals.’ As Lord Justice Laws pointed out, what is the Home Secretary to do if he is given evidence about individuals, which might have emerged under torture, that would enable him to prevent some major public outrage? Nothing at all? The problem, of course, arises from the Home Secretary’s powers of detention without trial. The result of this concession is that no evidence is ever brought for scrutiny before the courts. Here the nub is reached. As Greeks and Romans well understood, evidence by itself means nothing whatsoever. Its significance as evidence for something emerges only after scrutiny. Endless Platonic dialogues, for instance, show Socrates in discussion with friends about the meaning of concepts like ‘justice’. They produce a definition, Socrates exposes its defects, a new definition is produced, that too is torn apart, and so on. Critical scrutiny of this kind — the Greek is elegchos, Latinised into elenchus — is at the heart of democratic debate, and in our system it is for courts to carry out that scrutiny and make their decisions in public, not for home secretaries in private.