Yunus Rahmatullah v (1) Secretary of State for Foreign and Commonwealth Affairs (2) Secretary of State for Defence (Number 2)
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Maurice Kay,Lord Justice Sullivan |
| Judgment Date | 23 February 2012 |
| Neutral Citation | [2012] EWCA Civ 182 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2011/2210 |
| Date | 23 February 2012 |
[2012] EWCA Civ 182
The Master of the Rolls
Lord Justice Maurice Kay, Vice-President of the Court of Appeal (Civil Division)
and
Lord Justice Sullivan
Case No: C1/2011/2210
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S DIVISION, DIVISIONAL COURT
Lord Justice Laws and Mr Justice Silber
Claim No CO/4247/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
James Eadie QC and Ben Watson (instructed by the Treasury Solicitor) for the Respondents
Hearing date: 20 February 2012
On 14 December we handed down judgments in which we directed the issue of a writ of habeas corpus against the Secretary of State for Foreign Affairs and the Secretary of State for Defence ('the Secretaries of State') in respect of Yunus Rahmatullah ('the applicant'). The circumstances and reasons giving rise to the decision to issue the writ are, I hope, clear from our judgments, [2011] EWCA Civ 1540, and need not be repeated.
When we handed down judgment, the return day was fixed for 21 December 2011, a week later. The hearing due that day was adjourned to 18 January 2012 on the basis that the Secretary of State for Defence had received a 'holding' response from the office of William Lietzau, the United States Deputy Assistant Secretary of State for Defence, to a formal letter of request dated 16 December seeking the release of the applicant to the British authorities.
The return date was then adjourned again, effectively to 20 February 2012, on the basis that Mr Lietzau's office indicated to the British Embassy in Washington DC that it was unlikely that a substantive response to the 16 December request would be forthcoming before 18 January.
On 8 February, Mr Lietzau responded in a letter, in which he made it clear that the applicant was, in the view of the US government, being 'properly detained by the United States consistent with the international law of armed conflict' and that he was being 'held by US military forces in accordance with Public Law 107–40 … as informed by the laws of war'. The letter went on to state that the US authorities 'seek appropriate security assurances when [they] transfer a detainee' such as the applicant, 'regardless of whether the transfer is to the detainee's home country or to a third country.' The letter also recorded that the government of Pakistan, the country of which applicant is a national, was seeking his return, and stated that the US authorities 'believe it may be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan.'' The letter ended by saying that Mr Lietzau 'look[ed] forward to discussing this matter further'.
Mr Drew, the Director for National Security at the Foreign and Commonwealth Office ('the FCO'), in a witness statement dated 14 February, said that, by this letter, 'the US authorities, in suitably diplomatic language, have effectively declined the [UK government's] request that the [applicant] be transferred to UK custody in order to be released.' Mr Devine the Director of Operational Policy at the Ministry of Defence ('the MoD') has provided a brief witness statement agreeing with Mr Drew's statement.
At the hearing on 20 February, Mr Eadie QC, on behalf of the Secretaries of State, contended that, although they had been unable 'to produce the applicant's body', they had made a sufficient return to the writ so as to be discharged from all further liability thereunder. This was challenged by Ms Lieven QC, who argued that Mr Lietzau's 8 February letter left open the possibility of the US authorities returning the applicant to the UK government, and that we should at least require the Secretaries of State to write to Mr Lietzau asking for a 'straightforward yes or no' answer to the question whether the US authorities would return the applicant to the UK government.
Having heard the arguments, we indicated that we were of the view that the Secretaries of State were entitled to the relief which they sought, and said that we would give our reasons later. These are our reasons.
There can be no doubt but that the UK government made a bona fide request to the US authorities for the return of the applicant, which accorded with the terms of our judgment, and it had appended to it a copy of that judgment.
I turn, then, to the response of 8 February from Mr Lietzau. As I see it, the first...
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