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Statement ahead of Serdar Mohammed hearing

Statement from Leigh Day ahead of Supreme Court hearing in the case of Serdar Mohammed v MoD on Wednesday 26th October

Supreme Court

25 October 2016

The Supreme Court will this week hear lawyers argue to establish the legal framework which applies when the UK detains people overseas while assisting other states in maintaining security during periods of internal armed conflict.
In July 2015, the Court of Appeal unanimously held in the case of Serdar Mohammed v MoD that the UK is prohibited from detaining individuals without due legal process. The Court, led by the Lord Chief Justice, found that was lacking in Mr Mohammed's case.
Serdar Mohammed, is an Afghan man who was detained by British troops in 2010 and held by them without charge and without access to a lawyer for 110 days.
He was then handed over to the Afghan Security Services, whom he alleges brutally tortured him and forced him to thumbprint a document which, he was told, confirmed that he had ‘confessed’ to being a Taleb.
He was later convicted by an Afghan Court following a trial conducted in Dari, a language Mr Mohammed, a Pashto speaker, says he did not understand. He maintains his innocence and he was eventually released from detention in Afghanistan to return to his family in 2014.
During an earlier  hearing on 1-4 February 2016, the nine law lords heard arguments about whether British forces had the legal power to detain Mr Mohammed without charge under the relevant UN Security Council Resolutions in place and/or International Humanitarian Law as it applies in internal armed conflicts; and whether any such legal powers modified the UK's obligations under Art.5(1) of the European Convention of Human Rights ('ECHR'), which defines when the UK can lawfully detain individuals.
At the one-day hearing on 26 October 2016, the law lords will hear arguments about whether the MoD failed to put in place essential procedural safeguards in respect of Mr Mohammed's detention, and, if so, whether any such failure rendered Mr Mohammed’s detention unlawful.
A spokesperson from Leigh Day said:
“We are hopeful that the Supreme Court will recognise the fundamental importance of the rule of law especially in situations of internal armed conflict where instilling law and order is the primary objective of the British Forces.
“We will be arguing that there needs to be a lawful authority for any detention and for core procedural safeguards to be afforded to a detainee to prevent detention from becoming arbitrary.”

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