R (Evans) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards |
| Judgment Date | 25 June 2010 |
| Neutral Citation | [2010] EWHC 1445 (Admin) |
| Docket Number | Case No: CO/11949/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 June 2010 |
[2010] EWHC 1445 (Admin)
Before: Lord Justice Richards
and
Mr Justice Cranston
Case No: CO/11949/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Michael Fordham QC, Tom Hickman and Rachel Logan (instructed by Public Interest Lawyers) for the Claimant
James Eadie QC, Sir Michael Wood, Marina Wheeler and Karen Steyn (instructed by The Treasury Solicitor) for the Defendant
Khawar Qureshi QC and Kieron Beal (instructed by The Special Advocates Support Office of the Treasury Solicitor) as Special Advocates
Hearing dates: 19–23 and 26–29 April 2010
CONTENTS
|
| Paragraphs |
| INTRODUCTION | 1–13 |
| THE BROAD FACTUAL CONTEXT | 14–24 |
| THE HISTORY OF TRANSFERS: SUMMARY | 25–37 |
| THE NATIONAL DIRECTORATE OF SECURITY (THE NDS) | |
| Status of the NDS | 38–39 |
| Role of the NDS | 40–42 |
| Transfer of detainees to the NDS | 43–48 |
| Independent reports on the NDS | 49 |
| The Afghan Independent Human Rights Commission (AIHRC) | 50–57 |
| United Nations reports | 58–65 |
| NGO reports | 66–73 |
| Governmental reports | 74–75 |
| UK knowledge of allegations of mistreatment by the NDS | 76–84 |
| Evidence of changes within the NDS | 85–90 |
| THE MoU AND RELATED ASSURANCES | 91 |
| Background to the Memorandum of Understanding (MoU) | 92–94 |
| The MoU in outline | 95–99 |
| MoUs with other ISAF states | 100–104 |
| The Exchange of Letters (EoL) | 105–112 |
| The NDS and the MoU/EoL | 113–128 |
| Dr Saleh's letter of 25 March 2010 | 129–131 |
| Hand-over documents | 132 |
| IMPLEMENTATION OF THE TRANSFER ARRANGEMENTS | 133 |
| Transfer to third party state | 134–135 |
| Access by the AIHRC and other independent bodies | 136–140 |
| UK visits to detainees | 141–144 |
| NDS Lashkar Gah | 145–161 |
| NDS Kandahar | 162–164 |
| NDS Kabul | 165–168 |
| Non-NDS prisons | 169–170 |
| Record-keeping and notifications of change | 171–180 |
| Transfers between NDS facilities | 181–183 |
| Recent and future developments relevant to monitoring | 184–186 |
| SPECIFIC ALLEGATIONS BY UK TRANSFEREES | 187 |
| Prisoner X: NDS Lashkar Gah | 188–195 |
| Prisoner A: NDS Kabul | 196–199 |
| Prisoner B: NDS Kabul | 200–201 |
| Prisoner C: NDS Kabul | 202–203 |
| Prisoner D: NDS Kandahar/Kabul | 204–208 |
| Prisoner E: NDS Lashkar Gah | 209–215 |
| Prisoner G: NDS Lashkar Gah | 216–217 |
| The NDS's investigations and report | 218–224 |
| Recent allegations made to an Afghan judge | 225–226 |
| THE CANADIAN MATERIAL | 227–235 |
| THE LEGAL FRAMEWORK FOR THE ISSUE BEFORE THE COURT | 236–250 |
| THE CLAIMANT'S SUBMISSIONS | 251–267 |
| THE SECRETARY OF STATE'S SUBMISSIONS | 268–286 |
| DISCUSSION AND CONCLUSIONS | 287–327 |
Lord Justice Richards:
INTRODUCTION
This is the judgment of the court, to which both members have contributed. The case concerns UK policy and practice in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK armed forces in the course of operations in Afghanistan. The policy is that such detainees are to be transferred to the Afghan authorities within 96 hours or released, but are not to be transferred where there is a real risk at the time of transfer that they will suffer torture or serious mistreatment. The claimant's case is that transferees into Afghan custody have been and continue to be at real risk of torture or serious mistreatment and, therefore, that the practice of transfer has been and continues to be in breach of the policy and unlawful. The claimant seeks, in effect, to bring the practice of transferring detainees into Afghan custody to an end. If detainees cannot be transferred, the likelihood at present is that they will have to be released. Thus the importance of the case lies not only in its subject-matter but also in its implications for security in Afghanistan and the effectiveness of UK operations there.
The claimant is a peace activist who is opposed to the presence of UK and US armed forces in Afghanistan. The fact that she may have a wider objective in bringing her claim is, however, an irrelevance. The claim itself is brought in the public interest, with the benefit of public funding. It raises issues of real substance concerning the risk to transferees and, although the claimant's standing to bring it was at one time in issue, the point has not been pursued by the Secretary of State.
We wish to pay tribute to the way the case has been handled by all concerned, albeit after a slow start on the part of the Secretary of State.
The claim was filed in December 2008. Time was lost in the first half of 2009 through the Secretary of State's firm resistance to the grant of permission. That resistance came to an end, however, in June 2009, following the emergence of fresh allegations of mistreatment of UK transferees, and permission to apply for judicial review was granted by consent on 29 June. In the next few months there were repeated complaints by the claimant's legal representatives about delay by the Secretary of State in serving his detailed grounds and evidence and in making disclosure. The claimant's representatives cannot be faulted for the continued application of pressure, but we have reached no view on whether the particular complaints about delay were justified, since it has not been necessary for us to examine in any detail the matters that were canvassed at a number of directions hearings held in the latter part of 2009 and early 2010.
What is clear to us, however, is that by the time of the final hearing the Secretary of State had adopted a commendably conscientious approach towards the discharge of his disclosure obligations and his duty of candour. A massive, costly and time-consuming disclosure exercise had been undertaken, across the range of relevant departments and agencies, covering material in this country and in Afghanistan. By the time of the hearing only minor issues of disclosure remained, and they were largely resolved through the good sense of counsel.
In continuing discharge of his obligations, the Secretary of State also produced further material in the course of the hearing and after the hearing had ended, so as to provide the court with an update on recent developments. Although the claimant made some criticism of the speed with which updates were provided after the relevant information became known to the Secretary of State, we do not accept that there are legitimate grounds for complaint, given the need for the Secretary of State to investigate matters first in order to provide the court with as full and accurate an account of them as possible.
In any event, we are satisfied that no order for further disclosure was or is needed.
Moreover, procedures were put in place to ensure that material covered by public interest immunity or by statutory restrictions on disclosure could be taken fully into account by the court. This was achieved in part by disclosure to the claimant's legal representatives on the basis of appropriate undertakings, and in part by the appointment of special advocates to deal with material that could not be disclosed to the claimant's legal representatives. The claimant's legal representatives co-operated with the process in a highly responsible fashion. The process meant that the court had to split the hearing into three categories: open sessions, semi-closed sessions (in which the public were excluded but the claimant's counsel and counsel for the Secretary of State addressed the court, with the special advocates also present), and closed sessions (in which the public and the claimant's team were excluded but the special advocates and counsel for the Secretary of State addressed the court).
The evidence before the court includes a large number of witness statements, together with exhibits, on behalf of the claimant and the Secretary of State. Some of the claimant's evidence has the status of expert evidence but the factual material relied on is in practice more important. We will refer to the statements as appropriate in the course of our judgment, without setting out here who all the witnesses are or the matters that they cover. There are also numerous files of documents disclosed by the Secretary of State, to which extensive reference was made in the course of submissions. We have thought it necessary to set out the relevant facts at considerable length because the case ultimately depends on an assessment of risk in the light of the factual circumstances taken as a whole; but we have endeavoured not to overload the judgment with detailed references to the individual documents.
By orders made at previous directions hearings, the question whether there should be cross-examination of the Secretary of State's witnesses was left over to the hearing before us, and the Secretary of State was directed to ensure so far as possible that his witnesses were available to attend the hearing. The possibility of cross-examination remained a live one until late in the hearing. The claimant's skeleton argument identified various issues which were submitted to be suitable for cross-examination. At the outset of the hearing Mr Fordham QC indicated that he would seek a ruling once the court had heard opening submissions on the substantive issues from both counsel in open and semi-closed sessions. When that time came, however, Mr Fordham all but abandoned the application for cross-examination. He acknowledged that he was not impugning the good faith of any witness or seeking a...
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