Court rejects JR challenge against policy which authorised use of ‘challenge direct’ technique in interrogation process


Re: Hussein, R (on the application of) v Secretary of State for Defence [2014] EWCA Civ 1087

The appellant, who was substituted in the proceedings for the original claimant, was an Iraqi national who was arrested by UK forces in December 2004. He alleged that during his detention he was physically ill-treated both before and during his questioning and that he was subjected to substantial periods of shouting.

The appellant initially sought judicial review of a policy adopted by the respondent Secretary of State authorising a technique known as “challenge direct” for use in the interrogation of persons captured by UK forces in situations of armed conflict. The appellant’s grounds for judicial review of the policy were (1) that on its face, it is unlawful in that it constitutes inhumane treatment, contrary inter alia to Common Article 3 of the Geneva Conventions of 1949, or alternatively (2) that the policy is unlawful because there is an unacceptable risk that it will be exercised in a way that is not lawful having regard to the circumstances in which it may be used. The Divisional Court rejected both grounds and also expressed real concerns as to whether the appellant had standing to bring the proceedings. The Divisional Court granted permission to appeal and directed that the question of the appellant’s standing should be considered at the same time.

On appeal, the grounds were that (1) the court erred in holding that the revised policy in relation to the coercive questioning of detained persons who do not enjoy prisoner of war status is compatible with the United Kingdom’s obligations under international law and (2) further or alternatively, the court erred in holding that the policy and its application in Afghanistan (based on the available evidence) does not give rise to an unacceptable risk of breaching international law or authorising a common law assault. The CA held that the challenge to the policy on ground one failed because, inter alia, the short, sharp shock authorised by the policy does not constitute inhumane treatment within Common Article 3, nor does it constitute coercion, threatening or insulting conduct or unpleasant or disadvantageous behaviour within Article 17 of Geneva III. The CA further held that the challenge to the policy on ground two failed because, inter alia, there is nothing inherent in the policy permitting challenge direct which gives rise to an unacceptable risk of lawful conduct, while the necessary requirements to avoid any unlawfulness are fully detailed in the policy.

The CA further held that the appellant lacked standing to bring the proceedings for reasons including that he was not an individual directly affected by the matters which were the subject of the claim.

Tim Owen QC and Danny Friedman QC were involved in this case.