Haidar Ali Hussein v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,Lady Justice Hallett |
| Judgment Date | 01 February 2013 |
| Neutral Citation | [2013] EWHC 95 (Admin) |
| Date | 01 February 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9180/2011 |
[2013] EWHC 95 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett DBE
and
Mr Justice Collins
Case No: CO/9180/2011
Mr Tim Owen Q.C. & Mr Danny Friedman (instructed by Public Interest Lawyers Ltd) for the Claimant
Mr Richard Whittam Q.C., Mr Samuel Wordsworth & Ms Amy Sander (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 18 & 19 December 2012
This claim challenges the lawfulness of an element of the policy of the Defendant dealing with questioning of persons captured by UK Armed Forces. Persons captured are known by the acronym CPERS. The questioning takes two possible forms. One is what is known as interrogation, which is questioning by trained personnel in a controlled environment. The other is known as tactical questioning (TQ) which generally covers questioning by personnel immediately or very shortly after capture. While there should be no real distinction between the approaches in either form of questioning, at present the techniques which are challenged are not used in TQ because there is an insufficient number of properly trained personnel to undertake such questioning. The approaches are due to be deployed in TQ in Afghanistan this coming year.
When this claim was lodged, the Claimant was Ramzi Saggar Hassan. He was an Iraqi national. He had been arrested in April 2007 and questioned. He alleged that he had been ill-treated both physically and in being shouted at for substantial periods in the course of the questioning. Not only did he make this claim but he had been a co-claimant in a previous successful claim which sought a public inquiry into UK detention policy and practices in Iraq and had also made a private law claim (which the claimant has settled in private law proceedings) for damages for the ill-treatment which he alleged he had suffered.
By an order made by consent on 12 November 2012 the present Claimant was substituted. He too is an Iraqi national. He had been arrested in December 2004 and, he alleges, was physically ill-treated both before and during his questioning and was subjected to substantial periods of shouting. He was a co-Claimant in the same proceedings as Ramzi Hassan and has also made a private law claim for damages.
Since there is now no possibility that the Claimant or his predecessor or indeed anyone in Iraq could be affected by the present policy, it is not surprising that the Defendant in his Acknowledgement of Service asserted that the Claimant Hassan lacked standing. Certainly neither Claimant is or could be affected by the policy. It was suggested that he might be a potential future victim since the UK continued to carry out military and intelligence co-operation with Iraq. That suggestion is in my view unsupportable. The reality is that the only possible basis for allowing this claim to proceed is if it could be said that the public interest required that the issue be determined by the court and, it was said, the Claimants by reason of their past experiences could be said to be "sufficiently representative of those who might have standing". Those words come from Al Bazzouni v Prime Minister, which concerned hooding. While the policy had changed, hooding was still the issue. Here, the policy has changed since the Claimants were questioned, but, it is said, there is still permitted shouting (one of the techniques which was regarded as objectionable) and so the claim should be considered on its merits.
When granting permission, Ouseley J indicated that the Defendant should be permitted to raise the threshold arguments, including standing, at the substantive hearing. The other threshold arguments I will deal with after setting out the factual background to this claim and the grounds relied on by the Claimant. I am far from persuaded that the Claimants did or do have standing. However, since I have no doubt that the claim must fail on its merits there is little point in relying on lack of standing as a separate basis for refusing relief to the Claimant.
In September 2003 Baha Mousa was taken into custody by British troops in Iraq and, in the course of being detained for the purposed of tactical questioning, died. He was subjected to physical ill-treatment, which on any view was unlawful, but also to what was called a harsh approach. This sought to capitalise on the shock of capture and the anticipated vulnerability of the CPERS. It involved inter alia shouting in his face. This shouting might go on for some time and could involve personal abuse, taunting, making sarcastic comments and generally putting him in fear. In May 2008 an inquiry under the chairmanship of Sir William Gage was set up to "investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him … and to make recommendations."
There can be no doubt that the practices carried out under the guidelines then in place were unacceptable. The harsh technique included the following elements which could be deployed as the questioner considered necessary. The shouting could be as loud as possible. There could be what was described as uncontrolled fury, shouting with cold menace and then developing, the questioner's voice and actions showing psychotic tendencies, and there could be personal abuse. Other techniques were described as cynical derision and malicious humiliation, involving personal attacks on the detainee's physical and mental attitudes and capabilities. He could be taunted and goaded as an attack on his pride and ego and to make him feel insecure. Finally, he could be confused by high speed questioning, interrupting his answers, perhaps misquoting his replies.
Having seen extracts from the questioning of Ramzi Hassan, I am not in the least surprised that Sir William Gage concluded that the harsh technique was unacceptable. He said this:—
"The teaching of the 'harsh' permitted insults not just of the performance of the captured prisoner but personal and abusive insults including racist and homophobic language. The 'harsh' was designed to show anger on the part of the questioner. It ran the risk of being a form of intimidation to coerce answers from prisoners. It involved forms of threats which, while in some senses indirect, were designed to instil in prisoners a fear of what might happen to them, including physically. Insufficient thought was given to whether the harsh approach was consistent with the Geneva Conventions."
Before Sir William Gage reported, the Defendant issued some modifications to the harsh techniques policy. The court is concerned with the lawfulness of the policy as it now exists following Sir William's report, but it is to be noted that the MOD strategic detention policy statement of March 2010 requires the MOD and Armed Forces to —
"As a minimum, without prejudice to the legal status of a Detained Person, apply the standards articulated in Common Article 3 to the Geneva Conventions. Where other standards are applicable, they must be applied."
In the Joint Doctrine Publication 1–10, Captured Persons, second edition, October 2011, following publication of Sir William's report, it is made clear that all CPERS must be treated humanely in all circumstances and at all times. Minimum standards of humane treatment are identified. That approach has been maintained.
The present policies are dated 16 May 2012. There are two, one dealing with tactical questioning (TQ), the other with interrogation. As will be apparent when the relevant passages are referred to, there is no material difference between them for the purposes of this claim. Each is to be applied worldwide wherever CPERS need to be questioned by British troops, albeit at present it is likely to be used mainly if not solely in Afghanistan. Each policy is to be reviewed biennially or more frequently if required. The purpose of each form of questioning is to obtain valuable information. This information may protect the lives of other members of the forces or civilians. An obvious example is the location of road side bombs where a person has been captured who may well know details of such bombs. TQ is routinely conducted at or close to the point of capture but may be carried out later if the circumstances so require. Interrogation is to be carried out by specialist trained troops in facilities approved for the detention of CPERS and equipped and authorised for interrogation. It will be used where an individual is believed to possess valuable information and may follow TQ where it becomes clear that the CPERS needs to be dealt with by a fully trained interrogator in more formal surroundings. It involves systematic longer term questioning of a selected individual by a trained and qualified interrogator.
The element of the policies under attack in this claim is what is called the Challenging Approach. This has been developed following Sir William Gage's report, has taken account of his recommendations and has sought to apply them so as to avoid the potential unlawfulness apparent in the 'harsh' approach. I have taken the relevant parts of the policies from the interrogation policy, but there are no material differences in the TQ policy. Minimum standards of treatment are specified. There are five prohibited techniques; namely a requirement to maintain physical postures which are extremely uncomfortable, painful or exhausting, hooding, exposure to excessive noise, sleep deprivation and...
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