Detention over 96 hours is lawful if needed for security


Re: Abd Ali-Waheed v Ministry of Defence; Serdar Mohammed & Ors v Ministry of Defence [2017] UKSC 2

These appeals related to the lawfulness of the detention of two men in Afghanistan and Iraq by HM forces, considering how far ECHR, art 5 applies to cases of military detention in non-Convention countries.

By a majority of 7 to 2, the Supreme Court dismisses Mr Al-Waheed’s appeal and allows the Government’s appeal in Serdar Mohammed in part. According to the majority, British forces have the power to detain prisoners for periods exceeding 96 hours if necessary for imperative reasons of security (implicitly conferred by UN Security Council resolutions), but the procedures for doing so do not comply with ECHR, art 5(4) as there is no effective right for the prisoners to challenge their detention. Lords Reed and Kerr dissent, arguing that there is authority to detain prisoners for longer than 96 hours where circumstances meet ECHR, art 5(1), and that in the circumstances of the case, this was not met in the second period of detention.

The majority holds that it is unnecessary for the United Kingdom to establish a right of detention under Afghan law in order to rely on art 5 read with and modified as necessary having regard to the relevant Security Council resolution.

ECHR, art 5(4) requires, as the minimum standard of protection from arbitrariness, an impartial body carrying out initial and regular reviews in accordance with a fair procedure, and this was not provided for Mohammed. Nonetheless, the majority agree that finding a breach of these procedural standards will not necessarily entitle Mohammed to damages.

Andrew Clapham, Richard Hermer QC and Jessica Simor QC were involved in this case.