Law and Rights
Garrow's Law (Sunday 27th November) depicted the (first) trial of Thomas Picton - "Love or honour? It cannot be both". Picton was born in Pembrokeshire in 1758, became a soldier and fought with distinction under the command of Arthur Wellesley - later Duke of Wellington (1769-1852). At the Battle of Waterloo 1815, Picton (by now a Lieutenant-General) was killed - see his entry on wikipedia. During his military career, he was appointed as military Governor of Trinidad. The wikipedia entry states:
"For the next 5 years he held the island with a garrison he considered inadequate against the threats of internal unrest and of reconquest by the Spanish. He ensured order by vigorous action, viewed variously as rough and ready justice or as arbitrary brutality." By 1801, "reports of arbitrariness and brutality associated with his governorship had led to a demand at home for his removal."
"Picton's policy with respect to various sections of the island population had effectively been "let them hate so long as they fear" .... "
"In December 1803 [Picton] was arrested by order of the Privy Council and promptly released on bail set at £40,000.... The majority of the charges against Picton were dealt with by the Privy Council. They related principally to excessive cruelty in the detection and punishment of practitioners of obeah, severity to slaves, and of execution of suspects out of hand without due process. Only the latter class of charge seems to have seriously worried the Privy Council, and here Picton's argument that either the laws of Trinidad, then still the laws of the former Spanish colonial power, or 'the state of the garrison' justified the immediate execution in the cases specified eventually carried the day."
"He was, however, tried
in the court of King's Bench before Lord Ellenborough in 1806 on a single charge; the misdemeanor of having in 1801 caused torture to be unlawfully inflicted to extract a confession from Luisa Calderon, a young free mulatto girl suspected of assisting one of her lovers to burgle the house of the man with whom she was living, making off with about £500. Torture (but not the specific form) had been requested in writing by a local magistrate and approved in writing by Picton. The torture applied ("picketing") was a version of a British military punishment and consisted in principle of compelling the trussed up suspect to stand on one toe on a flat-headed peg for one hour on many occasions within a span of a few days. In fact Luisa was subjected to one session of 55 minutes, and a second of 25 minutes the following day."
"The legal arguments, ... , revolved on whether Spanish law permitted torture of suspects: on the evidence given, the jury decided that it did not and Picton was found guilty.
"Picton promptly sought a retrial, which he got in 1808. At this, other credible witnesses were brought forward by Picton's supporters to testify to the (Spanish) legality of torture, its application in the recent past, and that Luisa Calderon had been old enough to be legally tortured. The jury reversed the verdict of the earlier trial but asked for the full court to consider the further argument of the prosecution that torture of a free person was so repugnant to the laws of England that Picton must have known he could not permit it, whatever Spanish law authorised. The full court never reached a decision on this; there were legal precedents to this general effect from the British occupation of Minorca?and a practical precedent from the British seizure of the Cape of Good Hope from the Dutch, but it remained to demonstrate that Picton should have known this, and by now ... Picton [was] a war hero."
Interestingly, on 23rd November, the BBC carried the story of a request by a solicitor for the removal of Thomas Picton's portrait from a courtroom in Camarthen. See "Carmarthen Court Thomas Picton portrait removal call." The portrait is above the judge's chair and has been there for many years.
We cannot entirely judge people such as Picton by the lights of modern times. Their cruelty was utterly abhorrent. Such cruelty was endemic across most British overseas possessions. Brutal punishments were exacted by many, if not most, of those in authority. An example of this was the case of R v Wall (1802) 28 State Tr 51 where a colonial governor sentenced a soldier to an illegal flogging of 800 lashes. The man died and Wall was convicted of his murder.
Whilst Luisa Calderon was a free person, it worth recalling that, on 12th May 1789, the great William Wilberforce (1759-1833) made his first major speech on abolition of slavery in the House of Commons, in which he reasoned that the trade was morally reprehensible and an issue of natural justice. Diabolical cruelty was intimately connected with this appalling trade. Abolition came but slowly and was not fully achieved until the Abolition of Slavery Act 1833 - which Wilberforce only just lived to see. The Act required compensation to be paid to slave-owners and what was then a vast sum of £20m was set aside for that purpose.
Today, the United Kingdom is a signatory to the United Nations Convention against torture and other cruel, inhuman and degrading treatment or punishment - (Torture Convention). The prohibition on torture is reflected in the European Convention on Human Rights Article 3 which starkly states - "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The meaning of this has been amplified by decisions of the European Court of Human Rights. In 2005, in A (FC) v Secretary of State for the Home Department [2005] UKHL 71, the House of Lords considered the admissibility of "evidence" which had or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities. Their Lordships ruled that such evidence was inadmissible. Lord Bingham traced the history of the use of torture in England. He said (at para. 12):
"By the common lawyers torture was regarded as ... "totally repugnant to the fundamental principles of English law" and "repugnant to reason, justice, and humanity." One of the first acts of the Long Parliament in 1640 was, accordingly, to abolish the Court of Star Chamber, where torture evidence had been received, and in that year the last torture warrant in our history was issued. Half a century later, Scotland followed the English example, and in 1708, in one of the earliest enactments of the Westminster Parliament after the Act of Union in 1707, torture in Scotland was formally prohibited."
This alone shows for how long the conduct of those governing colonies lagged behind the legal position in England. It is very hard, if not impossible, to accept that men such as Picton did not realise that their lamentable cruelty would have been condemned had it occurred in England.
Regrettably, the need to abolish torture throughout the world is an aim which may well not be achieved for many years. This does not make the fight against the torture any the less vital and it must fall to each generation to continue to seek its prevention as a recent document by Amnesty demonstrates - "Universal Jurisdiction - a preliminary survey of legislation around the world." The torturer is "hostis humanis generi" (the enemy of mankind) and international law has a "universal jurisdiction" in relation to torture.
The condemnation of torture can also be extended in many small ways. Perhaps the time is right for the removal of Picton's portrait from a courtroom in the United Kingdom.
National Archives - Abolition of Slavery
UK to restrict Universal jurisdiction laws but only slightly
The Guardian - articles relating to Universal jurisdiction
International Slavery Museum - Liverpool Wilberforce House - Hull
- The Difference Between Torture And Other Ill-treatment: Cestaro V. Italy And The ?prohibited Purpose? Requirement
Christina Kosin (LL.M. Edinburgh) Ph.D. candidate and academic assistant at the German Police University What is the central element which distinguishes torture from inhuman or degrading treatment or punishment? Some scholars claim that the ?prohibited...
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Law and Rights
"Let them hate as long as they fear"
"For the next 5 years he held the island with a garrison he considered inadequate against the threats of internal unrest and of reconquest by the Spanish. He ensured order by vigorous action, viewed variously as rough and ready justice or as arbitrary brutality." By 1801, "reports of arbitrariness and brutality associated with his governorship had led to a demand at home for his removal."
"Picton's policy with respect to various sections of the island population had effectively been "let them hate so long as they fear" .... "
"In December 1803 [Picton] was arrested by order of the Privy Council and promptly released on bail set at £40,000.... The majority of the charges against Picton were dealt with by the Privy Council. They related principally to excessive cruelty in the detection and punishment of practitioners of obeah, severity to slaves, and of execution of suspects out of hand without due process. Only the latter class of charge seems to have seriously worried the Privy Council, and here Picton's argument that either the laws of Trinidad, then still the laws of the former Spanish colonial power, or 'the state of the garrison' justified the immediate execution in the cases specified eventually carried the day."
"He was, however, tried
in the court of King's Bench before Lord Ellenborough in 1806 on a single charge; the misdemeanor of having in 1801 caused torture to be unlawfully inflicted to extract a confession from Luisa Calderon, a young free mulatto girl suspected of assisting one of her lovers to burgle the house of the man with whom she was living, making off with about £500. Torture (but not the specific form) had been requested in writing by a local magistrate and approved in writing by Picton. The torture applied ("picketing") was a version of a British military punishment and consisted in principle of compelling the trussed up suspect to stand on one toe on a flat-headed peg for one hour on many occasions within a span of a few days. In fact Luisa was subjected to one session of 55 minutes, and a second of 25 minutes the following day."
"The legal arguments, ... , revolved on whether Spanish law permitted torture of suspects: on the evidence given, the jury decided that it did not and Picton was found guilty.
"Picton promptly sought a retrial, which he got in 1808. At this, other credible witnesses were brought forward by Picton's supporters to testify to the (Spanish) legality of torture, its application in the recent past, and that Luisa Calderon had been old enough to be legally tortured. The jury reversed the verdict of the earlier trial but asked for the full court to consider the further argument of the prosecution that torture of a free person was so repugnant to the laws of England that Picton must have known he could not permit it, whatever Spanish law authorised. The full court never reached a decision on this; there were legal precedents to this general effect from the British occupation of Minorca?and a practical precedent from the British seizure of the Cape of Good Hope from the Dutch, but it remained to demonstrate that Picton should have known this, and by now ... Picton [was] a war hero."
Interestingly, on 23rd November, the BBC carried the story of a request by a solicitor for the removal of Thomas Picton's portrait from a courtroom in Camarthen. See "Carmarthen Court Thomas Picton portrait removal call." The portrait is above the judge's chair and has been there for many years.
We cannot entirely judge people such as Picton by the lights of modern times. Their cruelty was utterly abhorrent. Such cruelty was endemic across most British overseas possessions. Brutal punishments were exacted by many, if not most, of those in authority. An example of this was the case of R v Wall (1802) 28 State Tr 51 where a colonial governor sentenced a soldier to an illegal flogging of 800 lashes. The man died and Wall was convicted of his murder.
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| Wilberforce Tomb - Westminster Abbey |
Today, the United Kingdom is a signatory to the United Nations Convention against torture and other cruel, inhuman and degrading treatment or punishment - (Torture Convention). The prohibition on torture is reflected in the European Convention on Human Rights Article 3 which starkly states - "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The meaning of this has been amplified by decisions of the European Court of Human Rights. In 2005, in A (FC) v Secretary of State for the Home Department [2005] UKHL 71, the House of Lords considered the admissibility of "evidence" which had or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities. Their Lordships ruled that such evidence was inadmissible. Lord Bingham traced the history of the use of torture in England. He said (at para. 12):
"By the common lawyers torture was regarded as ... "totally repugnant to the fundamental principles of English law" and "repugnant to reason, justice, and humanity." One of the first acts of the Long Parliament in 1640 was, accordingly, to abolish the Court of Star Chamber, where torture evidence had been received, and in that year the last torture warrant in our history was issued. Half a century later, Scotland followed the English example, and in 1708, in one of the earliest enactments of the Westminster Parliament after the Act of Union in 1707, torture in Scotland was formally prohibited."
This alone shows for how long the conduct of those governing colonies lagged behind the legal position in England. It is very hard, if not impossible, to accept that men such as Picton did not realise that their lamentable cruelty would have been condemned had it occurred in England.
Regrettably, the need to abolish torture throughout the world is an aim which may well not be achieved for many years. This does not make the fight against the torture any the less vital and it must fall to each generation to continue to seek its prevention as a recent document by Amnesty demonstrates - "Universal Jurisdiction - a preliminary survey of legislation around the world." The torturer is "hostis humanis generi" (the enemy of mankind) and international law has a "universal jurisdiction" in relation to torture.
The condemnation of torture can also be extended in many small ways. Perhaps the time is right for the removal of Picton's portrait from a courtroom in the United Kingdom.
Notes:
National Archives - Abolition of Slavery
UK to restrict Universal jurisdiction laws but only slightly
The Guardian - articles relating to Universal jurisdiction
International Slavery Museum - Liverpool Wilberforce House - Hull
- The Difference Between Torture And Other Ill-treatment: Cestaro V. Italy And The ?prohibited Purpose? Requirement
Christina Kosin (LL.M. Edinburgh) Ph.D. candidate and academic assistant at the German Police University What is the central element which distinguishes torture from inhuman or degrading treatment or punishment? Some scholars claim that the ?prohibited...
- Abu Qatada May Leave Uk Voluntarily If .....
The long running Abu Qatada deportation issue may be drawing to an end. Over around 8 years, the government has spent enormous amounts of public money on the various legal challenges to his deportation to Jordan. (See Jack of Kent Resource...
- Lord Neuberger's Timely Comment ...
In a speech prepared before the recent comments made by Ministers about pulling out of the European Court of Human Rights, the President of the Supreme Court (Lord Neuberger) issued a timely reminder that the United Kingdom is bound by other internationally...
- Human Rights - Just A Little More
Prof Juan MéndezThe right to help eachother: Following on from the immediately preceding post, I came across a blogpost which seems to really try to get the the basis of what "human rights" are about - Do right, fear no-one! -The right to help eachother....
- Has The Uk Been Complicit In Either The Torture Or Mistreatment Of Prisoners?
The media has been replete with articles about the Court of Appeal's judgment in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65. We have also heard how efforts were made to persuade Lord Neuberger MR...