The torture inquiry: justice must be seen to be done

Reprieve has challenged the appointment of Sir Peter Gibson as the Chair of the forthcoming inquiry into complicity in torture on the part of the intelligence services. I want to make the reasons for this very clear.

We are certainly not saying that Sir Peter is not an excellent and very senior judge. We do not want to launch any sort of personal attack on him. However, we do feel that, for a number of reasons, it is not appropriate for him to chair the inquiry.

When Prime Minister David Cameron launched the inquiry, he said that it was in order to remove a stain from our intelligence agency - because evidence had been presented that the intelligence service had been complicit in torture, this needed to be investigated so that public confidence in the agency could be restored.

Thus, justice must be done, but importantly, it must also be seen to be done. Reprieve believes that the appointment of Sir Peter Gibson will not assist that perception.

No one doubts Sir Peter’s ability or integrity. However, for the last 4 years, he has acted as the Intelligence Services Commissioner, in which appointment he has overseen the operation of the intelligence services. In various reports in this capacity, Sir Peter has said this of the agents he assessed ‘all staff in this difficult and challenging area of work continue to be trustworthy, conscientious and dependable’. This is in contrast to the findings of the Intelligence and Security Committee and Lord Neuberger, both of whom questioned the forthrightness of the service.

Further, in a recent interview, David Miliband, someone who knows this subject very well indeed, suggested that Sir Peter had already conducted an inquiry into the agency’s complicity for the last government.

Finally, a key issue for the inquiry is this: if it does transpire that the intelligence services are found to have been complicit in torture, how did that happen? Why did the statutory oversight mechanisms that are supposed to prevent this kind of thing ever happening (the Intelligence and Security Committee and the Commissioner) fail to spot the problems or rectify them? The Inquiry will make recommendations. All this will involve a careful examination of whether the Commissioner was given the information he needed by MI5 and MI6 and what he then did with that information.

Sir Peter was the Commissioner for much of the relevant period. His evidence will be central to the Inquiry. It is hard to see how it would be possible for him to be the judge as well. He may have to face criticisms during the inquiry that he did not spot or stop complicity in torture by Security Services. It is unfair to him to ask him to rule on his own work as Commissioner. It is also difficult to see how such a ruling (however fair) could ever command public confidence.

Judges are not allowed to sit on an appeal of their own decisions, even though everyone accepts that judges are independent, impartial and open minded. This is to maintain public confidence. The same applies here.

It is appropriate that a question be put as to whether Sir Peter is the ideal candidate to chair this inquiry. Asking difficult questions of power is what Reprieve does. The purpose of this inquiry is to remove public distrust. We are not questioning Sir Peter’s ability in any way but we are asking whether his chairmanship of this inquiry will achieve that aim.