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Ancient writ of Habeas Corpus issued for Pakistani prisoner in US detention

Historic legal decision as CA rules writ of Habeas Corpus should be issued in Rahmatullah case

Posted on 14 December 2011

In an historic judgment, the Court of Appeal has overturned the decision of the Divisional Court  and agreed that the historic writ of Habeas Corpus should and can be issued in the case of a Pakistani citizen, currently detained by US authorities in Afghanistan. 

Mr Yunus Rahmatullah (29) has been detained without charge at the notorious Bagram Airbase in Afghanistan for over 7 years. British forces seized him in February 2004 during an operation against insurgents in Iraq. The soldiers handed him over to their US counterparts under a Memorandum of Understanding covering how prisoners would be managed. He was subsequently illegally rendered to Afghanistan.

Mr Rahmatullah was the subject of an embarrassing climb down in 2009 by the then Defence Secretary John Hutton who had to admit that the Government had previously misled the house when it said that it had not been involved in the US practice of Rendition.

In June 2010, a detention review board authorised his release, saying he posed "no enduring security threat" - but he remains in detention.

Although in US custody, the UK is the “detaining authority” pursuant to the Memorandum of Understanding struck between the UK and US during the invasion of Iraq and remains responsible for Mr Rahmatullah under the Geneva Conventions.

The ancient writ of habeas corpus is a right under English law that dates back to the Magna Carta. It may be issued on behalf of any prisoner unlawfully detained so as to bring him (originally, his actual person; now more often just the facts of the case) before the High Court, and his release ordered.

The application was strongly resisted by the UK government, which argued that Mr Rahmatullah was no longer in its control and that it was improper of the Court to interfere with its relationship with the US authorities.  The Government suggested that the writ should not be issued as the US might refuse the UK’s request to return Mr Rahmatullah.

The Government have at no time during the course of this case sought to argue that Mr Rahmatullah’s ongoing detention is lawful

In dismissing the Government’s arguments that to grant the writ would trespass into the “forbidden area” of international relations, Lord Justice Maurice Kay observed that “the Court should be studious to avoid a refusal to protect personal liberty by withholding a writ of habeas corpus on such flimsy grounds” .

Law firm Leigh Day & Co represented Mr Rahmatullah with the assistance of the legal charity Reprieve who have worked and campaigned on his case for a number of years. 

Mr Rahmatullah is held in incommunicado detention and is prevented from speaking with or instructing lawyers.   Instructions to act on his behalf were received through his cousin who has intermittent communication with the client through the International Committee of the Red Cross.

Mr Rahmatullah’s solicitor, Jamie Beagent of Leigh Day & Co, said:  “This judgment affirms that our client remains the responsibility of the UK under international law.  The Government must now accept its responsibilities and seek the return of Mr Rahmatullah from US detention, under the terms of its agreements with the United States, and present him to the UK Court and secure his release from detention.

“We hope that the writ of habeas corpus will finally bring to an end our client’s nightmare of indefinite detention without charge in appalling conditions at Bagram.”

For more information please contact David Standard, head of media relations on 07540 332717