Lawfulness of detention in Afganistan and Iraq by British armed forces considered


Re: Mohammed & Ors v Secretary of State for Defence and another case [2015] EWCA Civ 843

Main Appeal
The appellant was detained from 7 Apr 2010 until 25 Jul 2010 on the basis that he posed a risk to HM armed forces. He argued that he should not have been detained for longer than 96 hours after his capture, and claimed damages for unlawful detention as a public law claim under the HRA 1998 and as a private claim in tort.

The Court concluded that the appellant’s detention was governed by the ECHR, though it expressed concern about this territorial application, which had been established by the Supreme Court in Smith v Ministry of Defence, applying the ECtHR decision in Al-Skeini. The Court held that the appellant ought to have been handed over to the Afghan authorities or released after 96 hours, and that the appellant had a right to bring a claim in public or private law.

The Court did not agree that the actions of HM armed forces were attributable International Security Assistance Forces or that UN immunities could be relied on. Procedural safeguards appropriate under international law for a non-international armed conflict were not established, as there was no periodic objective review with participation from the appellant. Thus, detention was contrary to ECHR, art 5.

As detention occurred in Afghanistan, Afghan law would apply to a private law claim, though this tort claim could in principle be made in the English courts.

Conjoined Appeals
The Court also considered similar issues in two other sets of litigation. The first involved PIL claimants who challenged the length of their detention. The second involved a civil claim against the Ministry of Defence and the Foreign and Commonwealth Offices in tort and under the Human Rights Act. The claimant in that instance had been detained by HM armed forces before being transferred to US custody, where he was detained for ten years and allegedly subjected to torture. The claimant was also involved in a claim for judicial review of his transfer to US custody, along with another claimant. The same preliminary issues are the subject of hundreds of claims being brought by Iraqi civilians against the Ministry of Defence, so three test cases were chosen from the Iraqi Civilian Litigation also.

The Court was solely concerned with whether the state could rely on a Crown or domestic act of state defence to unlawful detention and unlawful transfer claims. While unable to determine whether this defence was available because the case facts had not been established, the principles identified in the main appeal would apply to the present cases also. The Court stipulated that a defence would be available if the conduct challenged was implementing an Executive policy decision on foreign relations where there was a rationale for not allowing such claims to be made against the state. The question would be whether there was a compelling public policy consideration that justified denying tort claims based on Executive action abroad.

In the main appeal, the Court considered that there was a clash between the public interest in ensuring the nation could be protected by allowing the HM armed forces to gather vital national security intelligence beyond the 96 hour limit and the public interest in allowing detainees to challenge the lawfulness of their detention. Given that there was no authority to detain him, they considered that there was no public policy considerations which should prevent Afghan tort law being relied on.

Edward Craven, Phillippa Kaufmann QC, Richard Hermer QC and Andrew Clapham were involved in this case.