British intelligence officers who question prisoners at risk of torture while in the hands of foreign governments are committing no offence, lawyers for the government have argued at the high court.

Only if they "know or believe" that torture will take place as a result of their actions could they face criminal liability, according to a legal defence of instructions under which MI5 and MI6 officers operate. In some circumstances, the high court has been told, the government believes it may be "both appropriate and lawful" for ministers to tell the intelligence agencies they can interrogate a prisoner, or hand over questions to be put to them, while there is a serious risk that that person is being tortured.

The claims were made as the government defends itself against allegations that the instructions it issues to British intelligence officers attempting to obtain information from prisoners held by countries with poor human rights records are unlawful. The Equalities and Human Rights Commission is challenging the instructions on the grounds that they expose prisoners held in some countries to the risk of torture, and that the British government and individual intelligence officers would be criminally liable.