The Queen (Haidar Ali Hussein) v The Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Lord Justice Ryder,Lord Justice Tomlinson |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1087 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2013/0892 |
| Date | 31 July 2014 |
[2014] EWCA Civ 1087
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
HALLETT LJ & COLLINS J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
Lord Justice Lloyd Jones
and
Lord Justice Ryder
Case No: C1/2013/0892
Tim Owen QC and Danny Friedman QC (instructed by Public Interest Lawyers) for the Appellant
James Eadie QC, Sam WordsworthQC andAmy Sander (instructed by the Treasury Solicitor) for the Respondent
Hearing dates: 10, 11, 12 June 2014
This case is now concerned with a policy of the Secretary of State for Defence ("the Secretary of State") adopted in May 2012 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 seeks judicial review of the policy on the ground 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, alternatively on the ground 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 proceedings were commenced in September 2011. At that time the challenge was to a questioning technique known as the harsh approach. In May 2012 the Secretary of State replaced the policy authorising the harsh approach with a new policy authorising challenge direct. The proceedings were subsequently amended and have continued as a challenge to the policy authorising challenge direct.
The original claimant in these proceedings was Mr. Ramzi Saggar Hassan, an Iraqi national who had been arrested and questioned by UK forces in Iraq in April 2007. He alleged that while detained he had been ill-treated both physically and by being shouted at for substantial periods of time during questioning. In addition to bringing these proceedings he was a co-claimant in a claim which successfully sought a public inquiry into UK detention policy and practices in Iraq and he also brought proceedings for damages in respect of the ill-treatment which he alleged he had suffered. The private law proceedings were settled.
The present claimant, Mr. Haidar Ali Hussein, was substituted in these proceedings by consent by order made on 12 November 2012. Mr. Hussein is an Iraqi national who was arrested by UK forces in December 2004. He alleges that during his detention he was physically ill-treated both before and during his questioning and was subjected to substantial periods of shouting. He was a co-claimant with Mr. Hassan in the proceedings seeking a public inquiry. He has also made a private law claim for damages in respect of his treatment by UK forces.
The Secretary of State in his Acknowledgement of Service asserted that Mr. Hassan lacked standing to bring these proceedings. When granting permission to apply for judicial review Ouseley J. indicated that the Secretary of State should be permitted to raise the issue of standing at the substantive hearing.
The Divisional Court (Hallett LJ and Collins J) firmly rejected both grounds. It also expressed its considerable doubts about the standing of the Appellant to bring these proceedings, although it did not decide that point. The Appellant now appeals to this court with the leave of the Court of Appeal.
Challenge Direct
It is necessary to say something about the evolution of the policy challenged in these proceedings. The challenging approach with which these proceedings are concerned has its origin in an earlier permitted method of questioning known as the harsh approach. The harsh approach was described by Collins J. in the Divisional Court as follows:
"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 reply." (para 7)
One of the persons to whom the harsh approach was applied was Baha Mousa who in September 2003 was taken into custody by UK forces in Iraq and, in the course of detention for the purposes of tactical questioning, died. In his report Sir William Gage had this to say about the harsh approach:
"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. "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 Convention." (para. 6.346) [1/588]
In his report Sir William Gage distinguished between the use of the harsh approach in tactical questioning (routinely conducted at or close to the point of capture but which may be carried out later if the circumstances require) and interrogation (carried out by specialist trained troops in facilities approved for the detention of captured persons and equipped and authorised for interrogation). Sir William found it entirely unacceptable that the tactical questioning policy should be silent as to whether or not the harsh approach was permitted as part of tactical questioning. As to whether the harsh approach was appropriate at all, Sir William emphasised that it was not for him to make any kind of rulings as to the legality of the harsh approach (para. 16.176). However, he stated that he was clear that the harsh approach at the very least came close to the edge of what was legally permissible in the treatment of captured persons. He noted that it would seem that the harsh policy would permit the interrogator cynically to deride the captured enemy commander as an incompetent and perhaps cowardly leader because of the circumstances of the capture of his unit, but this was said not to be an insult because it derided the commander's performance and was not an insult to his person. He observed that this was a very fine line.
Sir William Gage concluded that the harsh approach no longer had a place in tactical questioning. So far as its application in interrogation was concerned, he concluded that, even as recently redefined, it carried high legal risk. There were clear arguments that its use may be contrary to the Geneva Conventions. He concluded that, to the extent that the Ministry of Defence (" MoD") considered that the harsh approach could still lawfully be used in interrogation, there was a need for very clear guidance to be given within the interrogation policy and in training as to the proper limits of the harsh approach. In light of the legal and other risks in the use of the harsh approach, he considered that specific Ministerial approval should be sought before the harsh approach was approved for use in any operational theatre. [16.205]
While Sir William Gage was preparing his report, the MoD wrote to the Inquiry on 7 March 2011 stating that it believed that there was a need to retain elements of the harsh approach in both interrogation and tactical questioning and that by applying strict parameters it considered that the legal risks could be effectively managed. It drew attention to the distinction drawn by the 2010 MoD Interrogation Policy between two types of harsh approach, "loud harsh" and "cynical/sarcastic harsh". It maintained that so far as the loud harsh approach was concerned, this was intended to be used where there was the need to gain the attention of a person who was being questioned and who deliberately ignored the questioner or was otherwise not engaging with him. It continued:
"Within clear and stringent parameters the MoD considers that a requirement exists for a questioner to raise his voice or even to shout at a subject if it is necessary to refocus him on the questions being asked. The strict parameters which the MoD considers are necessary properly to control the use of a refocusing approach are:
• The approach should only be used in circumstances where it is necessary and appropriate to refocus a CPERS [an acronym for captured persons] on the questions which he is being asked.
• The frequency with which allowed approach is used to refocus the subject of tactical questioning or interrogation should be limited to [REDACTED].
• The duration of the approach should be limited so that it lasts a maximum of [REDACTED].
• Speech must be coherent and translated.
• The questioner must not shout into the subject's ear.
• There must be no violence or threat of violence.
• There must be no intimidation of any kind.
• The questioning must not seek to frighten or instil fear.
• There must be no threats...
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