In A(FC), Justice Bingham of the English House of Lords wrote:
"[F]rom its very earliest days the common law of England set its face firmly against the use of torture.... 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.
"In rejecting the use of torture, whether applied to potential defendants or potential witnesses, the common law was moved by the cruelty of the practice as applied to those not convicted of crime, by the inherent unreliability of confessions or evidence so procured and by the belief that it degraded all those who lent themselves to the practice. This rejection was contrasted with the practice prevalent in the states of continental Europe who, seeking to discharge the strict standards of proof required by the Roman-canon models they had adopted, came routinely to rely on confessions procured by the infliction of torture.
The 1985 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as:
“... 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, 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.
“It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Torture can be distinguished from “inhuman and degrading treatment or punishment”. Section 3 of the 1950 European Convention on Human Rights states (emphasis added):
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
In Saadi v Italy (2008), the defendant, a terrorism suspect, was facing deportation and alleged torture should he be deported back to Tunisia. The Court said:
“According to the Court's settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of §3 (of the European Convention on Human Rights). The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.
“In order for a punishment or treatment associated with it to be ‘inhuman’ or ‘degrading’, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
“In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in §3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of torture to attach only to deliberate inhuman treatment causing very serious and cruel suffering.”
The treaty constituting the International Criminal Court defines the word differently, and in the context of crimes against humanity:
"Torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions...."
In his 1897 edition of the American Law Dictionary, jurist John Bouvier calls torture an “absurd and cruel practice” and defines it as a:
“... mode of examination by violence to the other person, to extort a confession from supposed criminals, and a revelation of their associates.”
In 1535, torture was the statute-mandated method of interrogating pirates so they would “confess their offence, which they will never do without torture....” (extract pictured above).
- A (FC) v Secretary of State for the Home Department  1 All ER 575,  2 AC 221,  UKHL 71 and at  3 WLR 1249 (extract re-ordered from original)
- Bouvier, John, Law Dictionary (Boston: The Boston Book Company, 1897), p.1125-1126.
- The Eighth Amendment of the Constitution of the United States.
- European Convention on Human Rights, Rome, 1950, published at hri.org/docs/ECHR50.html
- Larocque, F., The Tort of Torture (2009) 17 Tort L. Rev. 158
- Saadi v Italy, European Court of Human Rights, February 28, 2008, application #37201/06
- Statutes of England, 27 Henry VIII, Chapter 4 (1535)
- United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, published at hrweb.org/legal/cat.html
- West, L., and Neave, F., Mozley and Whitley’s Law Dictionary (London: Butterworth & Co., 1908), p. 343.