Scottish Government's "provisions of their criminal law": FOI release

Information requested

"Point 13 of the CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) of the ICCPR states:

"States parties should indicate when presenting their reports the provisions of their criminal law which penalize torture and cruel, inhuman and degrading treatment or punishment, specifying the penalties applicable to such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons."

(See this link https://seafarersrights.org/wpcontent/uploads/2018/03/INTERNATIONAL_TREATY_HRC-GENERAL-COMMENT-NO-20-ARTICLE-7-CCPR_1992_ENG.pdf) 

Please provide Scottish Government's "provisions of their criminal law" in this regard."

Response

The answer to your question is that torture is a criminal offence in the UK including in Scotland under section 134 Criminal Justice Act 1988. A person can be guilty of this offence on an art and part basis under section 293(1) of the Criminal Procedure (Scotland) Act 1995. A person may also be guilty under section 293(2) of the Criminal Procedure (Scotland) Act 1995 of this offence by aiding, abetting, counselling, procuring or inciting any other person to commit this offence. The maximum penalty in these cases is life imprisonment.

Article 3 ECHR, as given effect in the HRA, provides that no one shall be subjected to torture, inhuman or degrading treatment or punishment, and victims can rely upon it in civil and criminal proceedings.

Also, the basic rule in Scots law is that a confession is not admissible in evidence against an accused in criminal proceedings unless the confession has been given freely and voluntarily and was not extracted by unfair or improper means. Accordingly, a confession made as a result of threats, inducement or undue influence would not be admissible in evidence against an accused person. Nor would a confession which is "tainted with an element of bullying or pressure designed to break the will of a suspect or force from him a confession against his will" [Lord Advocate's Reference (No. 1 of 1983) 1984 SLT 337, 340]. Reliance by the prosecutor on evidence obtained by torture would, in any event and as noted above, be incompatible with the ECHR and accordingly unlawful in Scotland. If the accused puts in issue the question of whether a confession is admissible, the onus is on the prosecutor to establish that the confession was made freely and voluntarily and was not extracted by unfair or improper means. [Thompson v. Crowe 2000 JC 173].

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