Historically, torture has been reviled as an idea, yet employed as a tool and defended by its wielders, often in direct contradiction to their own averred beliefs. Judicial torture was a common feature of the legal systems of many countries including all civil law countries in Europe until the Enlightenment era. A papal bull forbade the practice of torture in Roman Catholic countries in 1816. This was part of ancient
Greek and
Roman law theory that remained valid in Europe. Roman law assumed, for example, that slaves would not tell the truth in a legal court as they were always vulnerable to threats from their owners. Their testimony could only be of value if it were extracted by a greater fear of torture. Legal scholars were well aware of the problems of false testimony produced by the threat of torture. In theory torture was not meant to produce a confession as such, but rather details of the crime or crime scene which only the guilty party would know. The
Spanish Inquisition is an example in which torture was used to extract information regarding allegations of
heresy. In
England, torture was never part of the
Common Law system, but the
Crown could still issue warrants of torture for specific cases (to acquire information rather than extract confession). The letter of the law was not always adhered to, for example the confession of
Marc Smeaton at the trial of
Anne Boleyn was presented in written form only, possibly to hide from the court that Smeaton had been tortured on
the rack for four hours. The Crown continued to issue warrants for torture into the 17th century. When
Guy Fawkes was arrested for his role in the
Gunpowder Plot of 1605, King
James I issued such a warrant and Fawkes was tortured to extract from him the names of his fellow conspirators. In the period 1540 to 1640 warrants were issued at an average rate of about one per year, with the last one being issued by Charles I in 1640. The last exception was
peine forte et dure, which could be used on someone who refused to plead guilty or not guilty, which was abolished in 1772. Torture was prohibited in
Scotland in 1708 after the
Acts of Union 1707. These prohibitions applied only in Britain, not in territories of the
British Empire unless explicitly introduced there. The use of torture in Europe became highly criticized during the
Enlightenment.
Cesare Beccaria's
On Crimes and Punishments (1764) denounced the use of torture as cruel and contrary to reason. The
French Revolution abolished the use of torture in
France and the French Armies carried abolition to most of the rest of
Europe. The last European jurisdictions to abolish legal torture were
Portugal (1828) and the canton of
Glarus in
Switzerland (1851). Under codified legal systems such as France, torture was superseded with a legal system that is highly dependent on investigating magistrates and the confession remains "The Queen of Proofs". As a result, such magistrates are often under pressure to produce results. It is alleged that in many cases police violence towards suspects has been ignored by the magistrates. In the
adversarial system of
common law used throughout the English-speaking world, the experience is a different one. As the two parties have to convince a jury whether the defendant in a case is guilty or innocent of a crime, if the defence can persuade a jury that reasonable doubt exists over the credibility of a confession, then the jury is likely to disregard the confession. If the defence can show that the confession was made under such duress that most people would make such a confession, then the jury is likely to question the confession's credibility. Usually the more duress that can be shown to have been used by law enforcement by the defence, the less weight most juries will place on confessions. In Britain, partly to protect the individual against police brutality and partly to make confessions credible to a jury, all interviews with a suspect are audio taped on a machine which make two simultaneous copies, one for the police and one for the defendant. In Northern Ireland, where society is more polarised than in the rest of the United Kingdom, which means that allegations of police brutality are perceived by sections of the community to carry more credence, interviews are video taped. It has been alleged that in certain circumstances torture, even though it is illegal, may have been used by some European countries. In "anti-terrorist" campaigns where information is needed for intelligence purposes, and not to obtain a confession for use in court, there is a temptation by the security forces, whether authorised by governments or not, to extract intelligence from alleged terrorists using any means available including the use of torture. Where there is a time component to a crime, for example in a kidnapping case, there is also a temptation for the police to try to extract information by methods which would make the evidence inadmissible in court. Israel
has been accused of using torture against Palestinians as early as 1967, and by 1987 torture was generally considered to be permissible under the law. However, there were limitations to who could be tortured. The party being tortured had to be considered guilty, and it had to be for good reason in order to be tolerated. In 1999, the
Supreme Court of Israel ruled that torture was unlawful and that prohibitions against torture were "absolute". Despite this ruling, there are claims that many innocent Palestinians still face torture tactics from Israeli authorities, revealing the difficulty of stopping torture in practice, even after it is no longer considered legal. ==Debate==