THE case of a Scottish medic fighting for the right to sue Saudi Arabia for torturing him has become caught up in the battle between the UK Government and Europe.
The European Court of Human Rights (ECHR) in Strasbourg last week backed a block on four British men, including Scot Sandy Mitchell, from suing Saudi Arabia through the UK courts for alleged torture. It supported a House of Lords ruling in 2006 which said officials could not be sued due to state immunity.
Mitchell's lawyer, Tamsin Allen, says Strasbourg is increasingly reluctant to rule against the UK Government because of Westminster's "hostility" to the European Court of Human Rights.
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Allen told the Sunday Herald she believes Strasbourg is reluctant to rule against the UK Government following the clash between the court and Westminster on the issue of prisoner voting rights.
In 2005, the ECHR ruled that a ban on all prisoners voting was a breach of human rights in a decision which infuriated the Government. The UK Justice Secretary Chris Grayling has spoken openly of the possibility of defying that ruling.
Allen said it was "scandalous" that the ECHR had taken more than seven years to reach its conclusion in the Saudi case, during which time one of the torture victims, William Sampson, had died.
She added: "There is a suggestion in some recent ECHR decisions that the ECHR will be reluctant to rule against the UK. My own view is that this is as a result of the Government's hostility to the EU and the Convention [on human rights] and its refusal to comply with the court's rulings. That is serious cause for concern."
She added: "Although the issue of state immunity for foreign torturers is by no means clear in international law, the ECHR has missed a golden opportunity to clarify the law and to ensure there is redress for torture victims in the EU."
Allen also confirmed the intention was to continue the fight by lodging an appeal with the Grand Chamber of the ECHR, which has the authority to make a final decision, within the next three months.
The four men who began the legal case - Sandy Mitchell, fellow Scot Ronald Jones, Leslie Walker and William Sampson - were among six Britons who were imprisoned in Saudi Arabia in 2000 over a series of car bombings in Saudi Arabia. Sampson - who had dual Canadian-British citizenship - died in 2012 at the age of 52. The men always denied responsibility, and there were claims Islamic militants were behind the bombings.
All of the men were eventually released and medical reports later confirmed that their injuries were consistent with their accounts of torture.
An initial bid to sue the Saudi authorities through the UK courts ended in failure in 2004, but later that year the Court of Appeal ruled the suspected individual torturers could be sued.
However, in 2006, a committee of law lords, who have now been replaced as the highest court in the land by the Supreme Court, said that decision had been flawed, prompting the men to take their case to Strasbourg.
In the wake of the latest ECHR judgment Mitchell, 58, who is originally from Glasgow but now lives in West Yorkshire, told the Sunday Herald he intended to continue the battle for justice "to my dying day".
He said: "The European Court has now come down on the side of the defendants who are the British Government - that is devastating. But there is one avenue left open to us and that is to appeal to the Grand Chamber of the European Court.
"We have come this far, it has taken us years and it's not about money any more, it's more about justice. Any British national can be tortured by a foreign power and there is no legal avenue of redress to them. If it takes me the rest of my life I will continue to pursue it to my dying day."
Human rights campaigners pointed out the men have "no prospects" of justice in Saudi Arabia and have called on the UK Government to take up the case with Riyadh.
Carla Ferstman, director of charity Redress, which helps torture survivors, said this course of action was now "well overdue".
Iain Byrne, of Amnesty International Scotland, raised concerns about the implications of the case.
He said: "There is a mixed message. There is the important principle of state immunity, which is a historic principle of international law, against a fundamental principle which is you shall not torture."
Dr Tobias Kelly, deputy director of the Global Justice Academy at Edinburgh University, said cases of torture were in certain circumstances considered an exception to the principle of state immunity.
He said: "Most states now practice universal jurisdiction for the crime of torture."
But he added: "The UN Convention was not explicit on civil cases. It is an ambiguous area and this was why the case was taken to the European court, to try to test whether universal jurisdiction or state immunity applied in civil cases. "
Only one person, Afghan warlord Faryadi Zardad, has ever been prosecuted in the UK for torture offences committed in another country. Zardad was given sentenced to 20 years' imprisonment in 2005 for what was described as a brutal regime of terror in his home country.
Kelly said it was "incredibly rare" for criminal cases of torture to be pursued.
He said: "Essentially it is because it is the state which commits the torture and it is the state which has to hold people to account. So there is a structural problem; the state is not going to find the state guilty and the political stakes are very high as well."
A spokesman for the Foreign & Commonwealth Office said: "The United Kingdom Government condemns the use of torture, and works to prevent it from occurring anywhere in the world.
"However, this case was not about the substance of the allegations but a fundamental legal point about state immunity which it was important to uphold. The Government is pleased that the Court has agreed with its arguments."
A Scottish Government spokesman said: "While the decision of the European Court of Human Rights must be respected, the Scottish Government condemns the use of torture in the strongest terms wherever and whenever it is used. We expect all states to comply with international human rights law."