In the first case the claimant), an Iraqi citizen, was detained by British armed forces in 2007 during a search operation in which it was alleged that arms and ammunition were recovered. At that time the United Kingdom was a mandatory power within a multi-national force, acting in support of the newly formed Iraqi Government and authorised by United Nations Security Council Resolution 1546/2004, as subsequently extended, to take all necessary measures to contribute to the maintenance of security and stability and specifically to intern where that was necessary for imperative reasons of security. The claimant was interned without charge in detention centres under the defendant’s control from 11 February 2007 until his release on 28 March 2007. In proceedings against the defendant he claimed that such detention had been unlawful since it was in breach of article 5.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The defendant denied that the detention had been in breach of article 5.1 on the ground that, since it had been necessary for imperative reasons of security, it had been authorised by international humanitarian law or by specific Security Council resolutions. The judge, concluding that the High Court was bound to follow previous authority of the House of Lords to the effect that the United Kingdom’s powers under such resolutions prevailed over its obligations under article 5.1 of the Convention, dismissed the article 5.1 claim and granted a certificate to enable the claimant to apply directly to the Supreme Court for permission to appeal.
In the second case, the claimant, a citizen of Afghanistan, was captured during a planned military operation and detained there for some months by British armed forces, acting as part of the International Security Assistance Force (“ISAF”) and under NATO command that had been deployed to assist the Afghan Government in maintaining security in Afghanistan. By United Nations Security Council Resolution 1386/2001, replaced by United Nations Security Council Resolution 1890/2009 which was operative at the time of the claimant’s capture, participating member states operating within ISAF, including the United Kingdom, were authorised to take all necessary measures to fulfil their mandate to provide security assistance throughout Afghanistan. The claimant was detained from 7 April until 25 July 2010 when he was transferred to the Afghan authorities. Initially he was held for 96 hours as provided by ISAF’s detention policy; he was then held beyond the 96-hour period, during which he was interrogated, and finally his detention continued pending transfer to the Afghan authorities. He brought proceedings against the Ministry of Defence seeking damages under the Human Rights Act 1998 in respect of his detention beyond the 96-hour period on the ground that such detention breached his right to liberty under article 5 of the Convention. On trial of preliminary issues on assumed facts the judge concluded that British forces had no power, either under United Nations Security Council resolutions or under customary international law to detain prisoners beyond 96 hours and that the claimants detention had been in breach of articles 5.1 and 5.4. The Court of Appeal upheld that conclusion.
On appeal by the claimant in the first case and by the defendant in the second case—
Held, (1) appeal in the first case dismissed (Lord Kerr of Tonaghmore and Lord Reed JJSC dissenting). Irrespective of whether customary international law sanctioned the detention of combatants during a non-international armed conflict, Security Council Resolutions 1546/2004 and 1383/2001, as extended by 1890/2009, in principle constituted authority for the detention and internment of enemy combatants in Iraq and Afghanistan respectively where it was necessary for imperative reasons of security. The United Kingdom was not restricted by the policy applied by British armed forces which limited detention to 96 hours. Article 5 of the Convention required modification to accommodate its six permitted grounds of detention with the power to detain since those six grounds, having been formulated in relation to peacetime conditions, did not readily adapt to a military context involving a non-Convention state and they were to be seen, not as exhaustive, but as illustrations of the exercise of the power to detain in the course of either an international or a non-international armed conflict, their objective (which was to provide protection against arbitrary detention) being achieved where there was a legal basis for detention and the power to detain was not exercisable on grounds which were unduly broad or discretionary. The United Kingdom’s procedure governing military arrest and detention in Afghanistan was sufficiently precise and comprehensive to meet the standards of article 5.1, and so article 5.1 as modified did not prevent a Convention state from acting under authority conferred by a United Nations Security Council Resolution. Therefore, in the first case, for the purposes of article 5.1 of the Convention British armed forces had had legal power to detain the claimant pursuant to Security Council Resolutions 1546/2004 on the basis that that was necessary for imperative reasons of security.(paras 28, 30, 38–39, 50, 63, 93, 112, 113,119, 134–136, 164–167, 180, 188, 222,224, 231).
(2) Appeal in the second case allowed (Lord Kerr of Tonaghmore and Lord Reed JJSC dissenting). The detention of the claimant in the second case did not fall within any of the six permitted exceptions in article 5.1 during the second period of his detention. Since transfer to the Afghan authorities did not constitute ”extradition”, he had not at any time been held pending extradition within the meaning of article 5.1(f); any period when he had been held solely for intelligence exploitation purposes could not be justified under article 5.1(c) or the relevant Security Council resolution; and the detention procedure adopted by the United Kingdom had failed to provide (i) sufficient guarantees of impartiality and independence to protect the detainee from arbitrariness and (ii) for the detainee’s participation on review of his detention. Accordingly, the minimum standards of procedural fairness required by article 5.4 appeared not to have been observed. However, the second case would be remitted to the judge for trial of the issues whether (i) intelligence exploitation had been the sole ground of detention during the second period of the claimant’s detention or imperative reasons of security had provided a concurrent reason justifying his detention under article 5, as modified, and (ii) his detention during the third period of detention came within article 5.1(c), as modified, or was justified by imperatives reasons of security (paras68, 78, 81, 84, 104–106, 111, 113, 134, 144, 205–206, 223, 224, 232, 235, 236, 351).
Richard Hermer QC, Andrew Clapham, Ben Jaffey, Alison Pickup and Nikolaus Grubeck (instructed by Leigh Day ) for the claimants on 1–4 February 2016 only.
Richard Hermer QC, Ben Jaffey, Nikolaus Grubeck and Julianne Kerr Morrison (instructed by Leigh Day) for the claimant in the second case on 26 October 2016.
James Eadie QC, Derek Sweeting QC, Karen Steyn QC and James Purnell (instructed by Treasury Solicitor) for the Secretary of State in the first case on 1–4 February 2016 only.
James Eadie QC, Sam Wordsworth QC, Karen Steyn QC and Julian Blake (instructed by Treasury Solicitor) for the Secretary of State in the second case.
Shaheed Fatima QC and Paul Luckhurst (instructed by PIL Lawyers Ltd on 1–4 February 2016) for the first interveners.
Jessica Simor QC (instructed by Hogan Lovells International LLP) for the second to fifth interveners, by written submissions only.