Court of Appeal unanimously rules that UK's detention regime in Afghanistan was unlawful

The Court of Appeal has today unanimously ruled that the UK’s detention regime in Afghanistan was unlawful.

The judgment by the Lord Chief Justice, Lord Thomas of Cwmgiedd, together with two further Lord Justices, was delivered in the case of Serdar Mohammed, 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 before being handed over to the Afghan Security Services, whom he alleges brutally tortured him.

Leigh Day, who represent Mr Mohammed, say their client was eventually released from detention in Afghanistan early last year and is believed to be back with his family in Helmand.

Mr Mohammed, who is illiterate and does not read any language, maintains his innocence.

He alleges that after being handed over to the Afghan Security Services he was tortured before being forced to put a thumbprint to a document which, he was told, confirmed that he had ‘confessed’ to being a Taleb.

He states that the whole process was conducted in a language he did not speak and he wasn’t provided with an interpreter, it is not entirely clear to Mr Mohammed what offence he was convicted of.

Lawyers had successfully argued before the High Court in 2014 that while the UN Security Council Resolutions adopted in respect of Afghanistan authorised British Forces to capture him and detain him for up to 96 hours, they did not authorise British Forces to hold him for approximately four months without allowing him to challenge his detention.

Leigh Day also successfully argued that Mr Mohammed’s prolonged detention was unlawful under Afghan law and that he was entitled to a remedy for his arbitrary detention. The Ministry of Defence had appealed against these findings.

In a unanimous judgment the Court of Appeal agreed with the High Court that there was neither the lawful authority for British forces to detain Mr Mohammed after 96 hours, nor the requisite procedural safeguards in place to prevent his detention from becoming arbitrary.

The Lord Justices further agreed with the High Court Judge that Mr Mohammed’s detention was unlawful under the law of Afghanistan and, overturning the decision of the High Court Judge, held that there were no compelling considerations of public policy to preclude Mr Mohammed from pursuing his right to a remedy in the English Courts.  

The Court noted that ‘…it was common ground that appropriate and lawful arrangements should have been made by the then Secretary of State and those advising him for the detention of those who posed a threat to HM armed forces and the accomplishment of ISAF’s [the International Security Assistance Force] mission in Afghanistan.’

However, the Court made the following findings:

‘There can be no doubt that the policy under which HM armed forces were operating at the time of [Mr Mohammed’s] detention went beyond that authorised by ISAF…As the authority under the UNSCR was granted to ISAF, any extension of periods of detention beyond that had to be authorised by ISAF.’ (Para 156)

The Secretary of State [for Defence] was unable to show a lawful basis for Mr Mohammed’s detention beyond the initial 96 hours as the arrangements made by the Secretary of State in relation to the deployment of HM armed forces to Afghanistan did not enable persons to be detained by HM armed forces for longer than 96 hours. (Para 9).

‘Procedural safeguards appropriate under international law for a non-international armed conflict were not put in place by the Secretary of State. What was required included periodic review by an impartial and objective authority (which did not have to be a court or a tribunal) and an opportunity to participate in the review. It is doubtful whether the authority that conducted the review of [Mr Mohammed’s] detention was impartial and objective but it is clear that [Mr Mohammed] was not given the opportunity to participate in the reviews. (Para 9(iii)).

‘As there was no authority to detain and proper procedural safeguards were not provided…the detention of [Mr Mohammed] was arbitrary and therefore contrary to Article 5 ECHR.’ (Para 9 (iv)).

In addition, overturning the decision of the High Court precluding Mr Mohammed from enforcing a claim for false imprisonment under Afghan law in the English Courts, the Lord Justices ruled that:

‘It is..a longstanding fundamental principle of common law that interference with personal liberty is unlawful unless the person responsible (here the Secretary of State) can show it was justified. In the particular circumstances of [Mr Mohammed’s] case, there was no authority to detain either under the legal regime established by the United Nations or under the law of Afghanistan or under UK legislation. We can therefore see no compelling considerations of public policy which should prevent reliance on Afghan law as the basis of the claims in tort brought in these proceedings; it must be for Parliament to consider whether it should provide for such a bar.’ (Para 364).

Sapna Malik, partner at Leigh Day said:

“On the 800th anniversary of the Magna Carta establishing that imprisonment should not occur without due legal process, the Court of Appeal’s unanimous judgment is vitally important in upholding the rule of law even in the most trying of circumstances.

“The Lord Justices have rightly recognised the fundamental importance of the right to liberty, which requires a lawful authority for any detention and for core procedural safeguards to be afforded to a detainee, even in a situation of armed conflict.

“It is also re-assuring to note that the Court has affirmed that ‘to deny a remedy to a victim of a wrong should always be regarded as exceptional’ and that ‘any exception must be necessary and requires strict and cogent justification’, which were not found to be present in this case.”