Al-Waheed v Ministry of Defence; Mohammed v Ministry of Defence (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Sumption,Lady Hale,Lord Wilson,Lord Mance,Lord Hughes,Lord Neuberger,Lord Toulson,Lord Hodge,Lord Reed,Lord Kerr |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] UKSC 2 |
| Date | 17 January 2017 |
| Court | Supreme Court |
[2017] UKSC 2
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Kerr
Lord Wilson
Lord Sumption
Lord Reed
Lord Hughes
Lord Toulson (1–4 Feb 2016)
Lord Hodge (26 Oct 2016)
Appellant (Al-Waheed)
Richard Hermer QC Andrew ClaphamBen JaffeyAlison PickupNikolaus Grubeck
(Instructed by Leigh Day)
Respondent (S Mohammed)
Richard Hermer QC Andrew ClaphamBen JaffeyAlison PickupNikolaus GrubeckJulianne Kerr Morrison
(Instructed by Leigh Day)
Respondent
James Eadie QC Derek Sweeting QC Karen Steyn QC James Purnell
(Instructed by The Government Legal Department)
Appellant
James Eadie QC Sam Wordsworth QC Karen Steyn QC Julian Blake
(Instructed by The Government Legal Department)
First Interveners
Shaheed Fatima QC Paul Luckhurst
(Instructed by Public Interest Lawyers)
Interveners 2–5 (Written submissions only)
Jessica Simor QC
(Instructed Hogan Lovells International LLP)
Interveners:
(1) Mohammed Qasim, Mohammed Nazim, Abdullah
(2) International Commission of Jurists
(3) Human Rights Watch
(4) Amnesty International
(5) The Open Society Justice Initiative
Heard on 1, 2, 3 and 4 February 2016 and 26 October 2016
(with whom Lady Hale agrees)
The United Kingdom was an occupying power in Iraq from May 2003, and a mandatory power acting in support of the Iraqi government from June 2004 until her withdrawal in 2011. She was a mandatory power in Afghanistan between December 2001 and her withdrawal early in 2015. In both countries, the United Kingdom's international status depended throughout on successive resolutions of the United Nations Security Council. Substantial numbers of British troops were engaged in both theatres as part of separate multi-national forces, primarily in southern Iraq and in the Afghan province of Helmand. They were required to deal with exceptional levels of violence by organised armed groups. In the course of their operations, prisoners were taken and detained in British military facilities for varying periods of time.
These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. In both cases, the claim is based in part on article 5(1) of the European Convention on Human Rights, which provides that no one shall be deprived of his liberty except in six specified cases and in accordance with a procedure prescribed by law. They also rely on article 5(4), which requires that the detainee should be entitled to take proceedings by which the lawfulness of his detention may be tested. The appeals have been heard together with a view to resolving one of the more controversial questions raised by such actions, namely the extent to which article 5 applies to military detention in the territory of a non-Convention state in the course of operations in support of its government pursuant to mandates of the United Nations Security Council.
Abd Ali Hameed Ali Al-Waheed was captured by HM forces at his wife's home in Basrah on 11 February 2007 during a search. The Secretary of State contends that components for improvised explosive devices (IEDs) and explosive charges and various other weaponry were found on the premises. He was held at a British army detention centre for six and a half weeks. He was then released after an internal review had concluded that a successful prosecution was unlikely, as there was no evidence that he had personally handled the explosives. At a pre-trial review before Leggatt J, it was common ground that so far as Mr Al-Waheed's claim was based on detention in breach of article 5(1) of the Convention, the judge and the Court of Appeal would be bound to dismiss it by the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2008] AC 332. The Appellate Committee had held in that case that article 5(1) was displaced by the United Nations Security Council Resolutions authorising military operations in Iraq. The judge was therefore invited to dismiss the claim under article 5(1) by consent and grant a certificate for a leap-frog appeal directly to the Supreme Court. A limited number of facts have been agreed, but there are no findings.
Serdar Mohammed, whom I shall refer to as "SM", was captured by HM forces in Afghanistan on 7 April 2010. The Secretary of State contends that he was captured in the course of a planned operation involving a firefight lasting ten hours in which a number of men were killed or wounded, and that he was seen to flee from the site, discarding a rocket-propelled grenade launcher and ammunition as he went. He was brought into Camp Bastion at Lashkar Gah, which was the joint operating base of the British army in Helmand. Intelligence is said to have identified him shortly afterwards as a senior Taliban commander who had been involved in the large-scale production of IEDs and was believed to have commanded a Taliban training camp in 2009. SM was detained for a period of three and a half months in British military holding facilities until 25 July 2010, when he was transferred to the Afghan authorities. He was subsequently convicted by the Afghan courts for offences relating to the insurgency and sentenced to ten years' imprisonment. In his case, the procedural history is more complicated. Leggatt J directed three preliminary issues to be determined on the assumption that the circumstances of SM's capture and detention, as pleaded in the Secretary of State's defence, were true. One of the preliminary issues concerned the relationship between article 5 of the Convention and the international law governing detention in the course of armed conflict. In the result, the judge held that in Afghanistan HM forces had no power, either under the relevant Security Council Resolutions or under customary international law, to detain prisoners for any longer than was required to hand them over to the Afghan authorities, and then for no more than 96 hours. He also found that they had no greater power under the domestic law of Afghanistan. On that footing, he considered that in detaining SM the United Kingdom was in breach of article 5(1) and (4) of the Convention: see [2014] EWHC 1369 (QB). The Court of Appeal, although differing from some aspects of the judge's reasoning, reached the same conclusion: see [2016] 2 WLR 247. These decisions, and the reasoning behind them, have significant implications for the Ministry of Defence and for British troops deployed to Iraq or Afghanistan and indeed other theatres to which they may be deployed under UN mandates.
The Secretary of State formulated eight grounds on which he sought leave to appeal to the Supreme Court in Serdar Mohammed. He received permission to appeal, either from the Court of Appeal or from the Supreme Court on six of them, the question of permission for the other two being deferred until the hearing. As a result of directions given in the course of the appeals, the sole ground of appeal before us at the opening of the hearing was the Secretary of State's ground 4. In the statement of facts and issues in Serdar Mohammed, the parties agreed that ground 4 raised the following issues:
"(1) Whether HM armed forces had legal power to detain SM in excess of 96 hours pursuant to:
(a) the relevant resolutions of the United Nations Security Council; and/or
(b) International Humanitarian Law applicable in a non-international armed conflict.
(2) If so, whether article 5(1) of the ECHR should be read so as to accommodate, as permissible grounds, detention pursuant to such a power to detain under a UN Security Council Resolution and/or International Humanitarian Law."
In Al-Waheed, the parties are agreed that the same issues arise, except that the question is whether HM armed forces had power to detain Mr Al-Waheed at all, there being no separate issue relating to the first 96 hours.
In the course of the hearing the parties were invited to make written submissions on two further questions arising in SM's appeal about the scope of article 5, which had been argued before Leggatt J and the Court of Appeal. This was because it was considered to be unsatisfactory to examine the Secretary of State's ground 4 without regard to them. The additional questions substantially corresponded to the Secretary of State's grounds 5 and 6. They were:
"(3) Whether SM's detention was compatible with article 5(1) on the basis that it fell within paragraph (c) of article 5(1) of the Human Rights Convention (detention for the purpose of bringing a suspect before a competent judicial authority) or article 5(1)(f) (detention pending extradition); and
(4) Whether the circumstances of his detention were compatible with article 5(4) of the Human Rights Convention (if necessary, as modified)."
These are complex appeals raising distinct issues, which were argued in stages. They are also related to other appeals arising out of military operations in Iraq and Afghanistan which were before the court at the same time. For these reasons the argument has extended over an unusually long period, rather more than a year. The retirement of Lord Toulson in July 2016 meant that he did not sit on the oral argument on the procedural requirements of articles 5(1) and 5(4) of the Convention, and has been concerned only with the other issues. Lord Hodge, who sat for the first time on these appeals in October 2016 has been concerned only with those procedural issues.
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