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¹³ The Papal Bull ad extirpanda was designed to compel heretics by measures short of maim or danger to life to confess their own error and to accuse other heretics.Google Scholar

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²⁰ He later fell out of favour, was charged with treason and executed at Tower Hill on 28 July 1540.Google Scholar

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²⁷ BP, Levackop cit at 187 n 20, points out that by this statute Scotland became the first country in Europe in which torture was abolished by law.Google Scholar

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²⁹ Ibid at 383. The safeguards which were introduced for the protection of the accused during the eighteenth century are described by ID Willock The Jury in Scotland (Edinburgh The Stair Society 1966), at 199; see also Smith v Lees, 1997 JC 73.

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³⁴ It seems to have been unique to Scotland: see Chambers Encyclopaedia, vol 2, Boot, Boots or Bootikin.Google Scholar

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³⁶ RD, Blackmore Lorna Doone ch xxxvi, refers to the Duke of York, as he then was, ‘trying boots in Scotland’.Google Scholar

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³⁹ The ninth Earl of Argyll was opposed to the Stuart rule in Scotland. He had been sentenced to death in 1681 for treason but fled to the Netherlands. He launched a rebellion from there and invaded Scotland with about 3000 men in 1685. But he was unable to obtain sufficient support, was captured and executed.Google Scholar

⁴⁰ Fountainhall's Decisions vol I 299–301; Hume op cit vol I, at 542.Google Scholar

⁴¹ Seen 39.Google Scholar

⁴² See Jackson op cit for a detailed account.Google Scholar

⁴³ His name is spelt ‘Carstares’ in other records: eg APS, vol ix at 192a; see Levack op cit at 191 n 41 and Jackson op cit. I have adopted the spelling which was used by Fountainhall.Google Scholar

⁴⁴ Fountainhall's Decisions vol I 302–3.Google Scholar

⁴⁵ ‘A blot on one's character, slur, stigma’: The Concise Scots Dictionary (Aberdeen University Press 1985).Google Scholar

⁴⁶ Fountain hall's Decisions vol I 324–6.Google Scholar

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⁴⁸ Ibid, at 326. This was the 3rd Earl, who was appointed a Privy Counsellor in 1682.

⁴⁹ Introduction to Scottish Legal History (EdinburghThe Stair Society 1958), at 441.Google Scholar

⁵⁰ Brother of Charles II, who became King James II in 1685.Google Scholar

⁵¹ This is a reference to the festival of Christmas.Google Scholar

⁵² Hume op tit vol 2 at 323.Google Scholar

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⁵⁶ James Sharp, Archbishop of St Andrews, was assassinated by Covenanters in 1679.Google Scholar

⁵⁷ The Bass Rock, in the Firth of Forth, was used as a prison during this period.Google Scholar

⁵⁸ Baillie, (1684), Hume op cit vol 2, 324, who was convicted on the confession of William Carstairs.Google Scholar

⁵⁹ Baillie, , Fountainhall's Decisions vol I at 324.Google Scholar

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⁶¹ The ‘pannell’, in Scots legal terminology, was the place of arraignment in a court; the word came to be used to refer to the prisoner at the bar, the accused.Google Scholar

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⁶⁴ (1953) (Cmnd 8689), now incorporated into domestic law by s 1 of the Human Rights Act 1998.Google Scholar

⁶⁵ Resolution 217A(m) (Cmd 7662).Google Scholar

⁶⁶ Adopted by the Ninth International Conference of American States on 2 May 1948.Google Scholar

⁶⁷ Adopted by a resolution of the General Assembly of the United Nations on 16 Dec 1966.Google Scholar

⁶⁸ Signed at San Jose, Costa Rica on 22 Nov 1969.Google Scholar

⁶⁹ Enacted by the Constitution Act 1982, Part I.Google Scholar

⁷⁰ Note the use of the word ‘and’ in the US and Canadian documents. The word ‘or’ is used in the Universal Declaration and in the European Convention.Google Scholar

⁷¹ Ingraham v Wright 430 US 651, 664 (1977).Google Scholar

⁷² Higgs v Minister of National Security [2000] 2 AC 288, 261.Google Scholar

⁷³ Filáriiga v Peña-Irala 630 F 2d 876 (2nd Cir 1980).Google Scholar

⁷⁴ Cm 1775.Google Scholar

⁷⁵ See R v Bow Street Metropolitan Stipendiary Magistrate, ex parie Pinochet Ugarte (No 3) [2000] 1 AC 147.Google Scholar

⁷⁶ NS, Rodley ‘The Definition(s) of Torture in International Law’ (2002) 55 Current Legal Problems 467, 468.Google Scholar

⁷⁷ AM, DershowitzWhy Terrorism Works (Yale University Press 2002) at 136. Amendment Vin (1791) provides that cruel and unusual punishment shall not be inflicted.Google Scholar

⁷⁸ Eg Ireland v United Kingdom (1979–80) 2 EHRR 25, para 167; Selmouni v France (1999) 29 EHRR 403, para 96; Akko v Turkey (2001) 35 EHRR 51, para 115.Google Scholar

⁷⁹ ‘The third degree’ is an expression which is applied to the severe and prolonged cross-questioning of the suspect. It was coined in the United States. According to Wigmore, an officer of the law administers the first degree when he makes the arrest, the second degree when the prisoner is taken to a place of confinement and the third degree when he is taken to private quarters and interrogated.Google Scholar

⁸⁰ Ireland v United Kingdom (1979–80) 2 EHRR 25.Google Scholar

⁸¹ Selmouni v France (1999) 29 EHRR 403, para 10.Google Scholar

⁸² Rodley op cit at 477.Google Scholar

⁸³ Ibid at 489–90.

⁸⁴ Dershowitz op cit at 124.Google Scholar

⁸⁵ These facts are taken from the brochure ‘A World without Torture … ’ published by the International Rehabilitation Council for Torture Victims, Copenhagen, Denmark.Google Scholar

⁸⁶ See, eg, Written Answer, Syria: Human Rights, 15 Jan 2004 (Hansard, vol 656, HL Debates, col WA 100).Google Scholar

⁸⁷ R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147.Google Scholar

⁸⁸ [2000] 1 AC 147,226–9.Google Scholar

⁸⁹ Between 1540 and 1640 it was administered 101 times in England, and there were thirtynine Privy Council warrants for its use in Scotland between 1590 and 1690: Levack op cit at 191, 194Google Scholar

⁹⁰ Redress The Reparation Report Issue 2, Nov 2003; see also Sunday Times 7 Dec 2003.Google Scholar

⁹¹ Al-Adsani v United Kingdom (2002) 34 EHRR 11.Google Scholar

⁹² Guantanamo Bay: The Legal Black Hole, 27th FA Mann Lecture, 25 11 2003: (2004) 53 ICLQ 1.Google Scholar

⁹³ On 28 June 2003 the Supreme Court held that United States courts have jurisdiction to consider challenges to the legality of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay: Rasul et al v Bush, President of the United States, etc (Rasul v Bush 321 F 3d 1134, reversed).Google Scholar

⁹⁴ Ibid at 8.

⁹⁵ Ibid.

⁹⁶ On 9 Mar 2004 five of the nine British subjects who were detained at Guantanamo Bay arrived back in the United Kingdom. They were taken to Paddington Green police station but were later released without charge. They have alleged that they were subjected to psychological torture and chained to a metal ring on the floor while they were being interrogated. A spokesman for the US authorities has stated that the detainees are being treated in a fair way according to the Geneva Convention.Google Scholar

⁹⁷ He was later to become Lord Lloyd of Berwick on his appointment as a Lord of Appeal in Ordinary.Google Scholar

⁹⁸ D, HurdMemoirs (London Little, Brown 2003) at 111.Google Scholar

⁹⁹ See n 4.Google Scholar

¹⁰⁰ Supreme Court of Israel, sitting as the High Court of Justice, HC 5100/94 and Others, 6 Sept 1999.Google Scholar

¹⁰¹ Para 39.Google Scholar

¹⁰² Para 23.Google Scholar

¹⁰³ Unfortunately there is little sign so far that the legislature is willing to take the initiative that the Supreme Court entrusted to it.Google Scholar