Al-Waheed and another v Ministry of Defence: Supreme Court: 17 January 2017

Right to liberty and security – Lawfulness of detention – Claimants being detained in course of British Army operations in Iraq and Afghanistan respectively – Claimants commencing proceedings against Ministry of Defence for breach of right to liberty – Whether armed forces having had legal power to detain claimants – Whether relevant law needing to be read so as to accommodate, as permissible grounds, detention pursuant to such power to detain under UN Security Resolutions and/or international humanitarian law – Effects of human rights law on second claimant’s case – European Convention on Human Rights, article 5(1), (4) – Fourth Geneva Convention – UNSCR 1546 (2004) – UNSCR 1386 (2001).

The present appeals arose out of the period in which the UK had acted as an occupying power in Iraq in 2003 and supporting its government until 2011, and as a mandatory power in Afghanistan between 2001 and 2015 as part of an international force (ISAF). The first claimant, AW, was captured at his wife’s house by British forces in February 2007 in Basrah, Iraq. The UK government claimed that explosives had been found there.

He was held in a British Army detention centre for six and a half weeks until an internal review decided that a successful prosecution would be unlikely. SM, the second claimant, was captured by British forces in April 2010 in Afghanistan. It was believed that he was a senior Taliban commander. He was detained until July, when he was transferred to the Afghan authorities. There were three periods to his detention: (i) the first 96 hours; (ii) 11 April to 4 May, when he was interrogated; and (iii) 4 May to 25 July, when SM was held pending transfer to the Afghan authorities.

Both claimants commenced proceedings against the Ministry of Defence, seeking damages and alleging that they had been detained in breach of the right to liberty under article 5 of the European Convention on Human Rights. Regarding AW, at a pre-trial review, it was common ground that so far as AW’s claim was based on detention in breach of article 5(1) of the Convention (article 5(1)), the judge and the Court of Appeal would be bound to dismiss it by the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2008] AC 332. In that case, it was held that article 5(1) was displaced by the United Nations Security Council Resolutions authorising military operations in Iraq.

The judge was therefore invited to dismiss the claim under article 5(1) by consent and permit an appeal directly to the Supreme Court. Regarding SM, the judge held that, regarding Afghanistan, British forces did not have the power to detail prisoners for any longer than was required to have them over to the Afghan authorities, and then for no more than 96 hours. Consequently, the detention of SM had been in breach of articles 5(1) and 5(4) of the Convention. The Court of Appeal agreed with that view, and the Ministry of Justice appealed to the Supreme Court.

The issues were: first, whether the armed forces had had the legal power to detain the claimants in excess of 96 hours pursuant to: (a) the relevant resolutions of the United Nations Security Council; and/or (b) international humanitarian law applicable in an non-international armed conflict. Second, if so, whether article 5(1) had to be read so as to accommodate, as permissible grounds, detention pursuant to such a power to detain under a UN Security Council Resolution and/or international humanitarian law.

The central issue was whether the reasoning in Hassan v United Kingdom [2014] All ER (D) 116 (Sep) (Hassan) should be applied so as to justify a conclusion that, when detaining the claimants, the UK had not violated article 5(1) any more than when it had violated the rights of the detained person in Hassan (see [122] of the judgment). In Hassan, the European court had held that the six permitted grounds listed in article 5(1) of the Convention were to not be treated as exhaustive in the context of armed conflict. The arrest in Hassan had occurred in an international armed conflict, rather than a non-international armed conflict, as per the present cases. Regarding the application of article 5(1), only two of the six possible grounds of detention were relied upon by the secretary of state, namely: detention pending extradition (ground (f)) and lawful detention for the purpose of bringing a suspect before a competent legal authority (ground (c)). Thirdly, the court considered the effects of article 5(4) of the Convention on the case of SM. Consideration was given to the Fourth Geneva Convention.

AW’s appeal would be dismissed. SM’s appeal would be allowed in part (Lord Reed and Lord Kerr dissenting).

(1) The authority to capture and detain enemy combatants for imperative reasons of security was conferred by two resolutions of the UN Security Council: in the case of Iraq, UNSCR 1546 (2004), and in the case of Afghanistan, UNSCR 1386 (2001). The necessary measures referred to in the latter required to fulfil the mandate given to ISAF clearly included a power of internment in both Iraq and Afghanistan. Individual states participating in ISAF in Afghanistan were not limited by ISAF’s policy of restricting detention to 96 hours. Consequently, ISAF had tacitly accepted that the UK was entitled to adopt its own detention policy (see [28], [39], [119] of the judgment).

For the purposes of article 5(1), British armed forces had had legal power to detain SM in excess of 96 hours pursuant to UN Security Council Resolutions 1386 (2001), 1510 (2003) and 1890 (2009) in cases where that had been necessary for imperative reasons of security (see [111] of the judgment).

(2) The same approach as used in Hassan, that the grounds of detention in section 5(1) could not be regarded as exhaustive in conditions of armed conflict, applied to a non-international armed conflict. They sought to protect the individual from arbitrariness. That would be achieved even in a state of armed conflict if there were regular reviews providing sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. The procedure governing military arrest and detention by British forces in Afghanistan was sufficiently clear and precise (see [113], [164] of the judgment).

Regarding detention pending extradition, on the evidence, it was not correct to speak of a transfer from the UK jurisdiction to that of Afghanistan when SM had been handed to the Afghan authorities. Afghanistan had always had criminal jurisdiction in the places where British forces had operated. Consequently, detention pending extradition did not apply. Regarding detention for the purposes of bringing SM before a competent legal authority, it was settled law that detention for the sole purpose of intelligence exploitation was incompatible with article 5(1) in a domestic context. Hassan did not justify departing from that principle in an armed conflict. It followed that SM’s detention in the second period could not be justified by reference to article 5(1)(c) (see [78], [80], [81] of the judgment).

SM’s detention in excess of 96 hours had been compatible with article 5(1) to the extent that he had been detained for imperative reasons of security. His detention after 11 April 2010 did not fall within article 5(1)(f), and his detention between 11 April and 4 May 2010 did not fall within article 5(1)(c) (see [111] of the judgment).

Al-Skeini v United Kingdom [2011] All ER (D) 70 (Jul) adopted; Hassan v United Kingdom (Application No. 29750/09) [2014] All ER (D) 116 (Sep) adopted; Sakik v Turkey (Application 23878/94) [1997] ECHR 23878/94 considered; Hamdi v Rumsfeld 542 US 507 (2004) considered; Ocalan v Turkey (Application 46221/99) [2005] ECHR 46221/99 considered; Medvedyev v France (Application No 3394/03) [2010] 51 EHRR 899 considered.

(3) Under article 5(4) of the Convention, the minimum standard of protection from arbitrariness equated to that imposed by articles 43 and 78 of the Fourth Geneva Convention: an impartial body carrying out initial and regular reviews in accordance with a fair procedure. That involved an initial review of the appropriateness of detention, followed by regular reviews thereafter, by an impartial body in accordance with a fair procedure. Those were the minimum requirements for protection against arbitrary detention, and nothing in Hassan justified any departure from them (see [68], [134], [206], [235] of the judgment).

The procedure applied to SM had breached the requirement to provide sufficient guarantees of impartiality and fairness to protect against arbitrariness in two respects. First, it had lacked independence. Second, it had failed to provide for SM’s participation. However, a finding of breach of the standards required by article 5(4) ECHR would not necessarily entitle SM to recoverable loss (see [105], [109], [110], [113] of the judgment).

Without prejudice to any other grounds on which it may be found that SM’s detention was unlawful, the Ministry of Defence was liable under article 5(5) and section 8 of the Human Rights Act 1998 to pay compensation to SM so far as the duration of his detention (including any detention pursuant to his conviction by the court in Afghanistan) was prolonged by his detention by British forces between 11 April and 4 May 2010 for intelligence exploitation purposes (see [111] of the judgment).

Hassan v United Kingdom (Application No. 29750/09) [2014] All ER (D) 116 (Sep) adopted.