By a majority, the Supreme Court held that United Nations Security Council resolutions gave British forces in Iraq and Afghanistan power to detain people when that was necessary for imperative reasons of security, and that article 5 of the European Convention on Human Rights should be read so as to allow that power. Detention solely to gather intelligence was not authorised, and Serdar Mohammed had no effective way of challenging his detention. Whether security in fact justified his continued custody, and what compensation if any followed, were left for trial. Lord Reed and Lord Kerr dissented.
Two damages claims by men detained by British forces were heard together. They asked how far article 5 of the European Convention on Human Rights, which limits the grounds on which a person may be deprived of liberty and requires a way of testing that detention, applies to military detention outside a Convention state during operations supporting a local government under United Nations Security Council mandates. A companion judgment, Rahmatullah v Ministry of Defence [2017] UKSC 1, considered the Crown act of state defence to foreign-law tort claims arising from these operations. The present judgment concerned article 5.
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The two detentions
Abd Ali Hameed Al-Waheed was captured by British forces at his wife’s home in Basrah on 11 February 2007 and held for six and a half weeks. The Secretary of State said that components for improvised explosive devices, charges and other weapons were found there. He was released after an internal review concluded that a successful prosecution was unlikely because there was no evidence that he had personally handled the explosives. A limited number of facts were agreed, but there were no findings. Because the House of Lords in Al-Jedda had held that article 5(1) was displaced by the Iraq resolutions, the claim under article 5(1) was dismissed by consent so that it could come directly to the Supreme Court.
Serdar Mohammed was captured in Afghanistan on 7 April 2010 and held in British facilities for three and a half months, until his transfer to the Afghan authorities on 25 July 2010. The Secretary of State said that he had been captured after a long firefight and identified as a senior Taliban commander involved in producing improvised explosive devices. He was later convicted by the Afghan courts of offences relating to the insurgency and sentenced to ten years’ imprisonment. Leggatt J decided preliminary issues on the assumption that the defence account of his capture and detention was true. He held that British forces could detain him only for long enough to hand him to the Afghan authorities, and for no more than 96 hours, and that articles 5(1) and 5(4) had been breached. The Court of Appeal reached the same conclusion, although it differed from some of his reasoning.
A power to detain for security
Article 5(1) lists six situations in which detention is permitted. They are aimed mainly at criminal, immigration and similar processes, not at holding an enemy fighter so that he cannot return to the fight. The Ministry argued that international law supplied a further power: either customary law applicable in a non-international armed conflict, or the Security Council resolutions, or both.
Lord Sumption, with whom Lady Hale agreed, did not decide whether customary international law itself authorises detention in a non-international armed conflict. Lord Reed, with whom Lord Kerr agreed, concluded that neither the Geneva Conventions nor customary law currently does so. The majority decided the appeals on the resolutions.
In Iraq, Resolution 1546 (2004), later extended, authorised “all necessary measures” to contribute to security and stability. An annexed letter referred to internment where necessary for imperative reasons of security. In Afghanistan, Resolution 1386 (2001), extended by later resolutions including Resolution 1890 (2009), authorised participating member states to take “all necessary measures” to fulfil the force’s mandate. Lord Sumption held that, in both countries, those words included detention of members of opposing armed forces when imperative reasons of security required it. Disarming a prisoner did not by itself remove the need to keep him: releasing him could recreate the same threat and undermine the mission. The power was not limited to the period before handover to the local authorities.
In Afghanistan, the international force’s own policy generally limited detention to 96 hours. From November 2009 the United Kingdom allowed longer detention in exceptional cases, including so that a detainee who might hold vital intelligence could be questioned. Lord Sumption and Lord Wilson held that the resolutions gave the power to the participating states, so the United Kingdom could adopt its own policy so long as it stayed within detention necessary for imperative reasons of security. Lord Mance read the resolutions as conferring authority through the international force, but held that the force had tacitly accepted the British policy. Either way, the majority rejected the view that 96 hours was a legal ceiling.
Reading article 5 alongside that power
The majority followed the Strasbourg Court’s approach in Hassan v United Kingdom. There, in an international armed conflict, article 5 was read with the Geneva Conventions so that the six listed grounds were not exhaustive, provided detention was not arbitrary and there were minimum safeguards. Lord Sumption held that the same approach applied where the power came from a Chapter VII Security Council resolution rather than those Conventions. Article 5 was not displaced altogether. Its core purpose, protection against arbitrary detention, still required a legal basis and a real opportunity to challenge the detention. The minimum was an early review and regular later reviews by an impartial body, using a fair procedure, on a standard at least equivalent to articles 43 and 78 of the Fourth Geneva Convention.
Detention solely to exploit intelligence did not meet that standard. The Strasbourg case law treats intelligence-only detention as incompatible with article 5(1), and the resolutions authorised detention only for imperative reasons of security, not for questioning as an end in itself. The November 2009 policy, so far as it permitted extended detention for that purpose alone, had no basis in international law.
Lord Reed and Lord Kerr dissented. They would have read the resolutions, in line with Strasbourg authority on Security Council measures, as not authorising detention outside article 5(1)(a) to (f) unless the resolution said so clearly. They would not have treated Hassan as extending to these non-international conflicts. On their view, Mr Al-Waheed’s detention was compatible with article 5(1) only if it fitted one of the six grounds, and Serdar Mohammed’s detention from 11 April to 4 May 2010 violated article 5(1).
How those rules applied to Serdar Mohammed
The judge divided his detention into three periods. For the first 96 hours he was held so that he could be brought before the Afghan authorities. From 11 April to 4 May 2010 ministers authorised continued detention to obtain intelligence, and the Afghan authorities were not then asked to take him. From 4 May, after questioning was thought to have no more intelligence value, he was held because the Afghan detention facility lacked space, until transfer on 25 July.
The majority held that the middle period did not fall within article 5(1)(c), which covers detention in order to bring a suspect before a competent legal authority, or article 5(1)(f), which covers detention pending deportation or extradition. A transfer to the Afghan criminal system, inside Afghanistan, was not extradition from the United Kingdom. Lord Sumption would not treat the judge’s finding that intelligence was the sole purpose as conclusive: the judge had wrongly thought that, once a man was disarmed, security could no longer justify detention, and he had treated the six article 5 grounds as exhaustive. Whether imperative reasons of security were also present, and would have led to continued detention anyway, was left for trial. If the intelligence detention prolonged his custody, and that extra time was not reflected in the Afghan sentence, there might be a recoverable loss.
The British detention instruction was precise enough to be “law prescribed” for article 5(1). Whether the later period satisfied article 5(3), which requires a suspect detained under article 5(1)(c) to be brought promptly before a judge or other authorised officer, was also left for trial. British forces were not the Afghan prosecuting authority and did not control Afghan criminal procedure.
No effective challenge to the detention
Article 5(4) required an effective right to have the lawfulness of detention decided. A claim for habeas corpus was legally available against a British respondent even though the prisoner was in Afghanistan, but Serdar Mohammed had no practical way of using it: he was illiterate, held by forces who did not speak his language, and given no legal advice or means of contacting his family. The internal reviews were frequent and documented, but Lord Sumption held that they failed article 5(4). The same officer who authorised detention reviewed it, advised by subordinates, and the detainee was not told the gist of the case, how the review worked, or allowed to obtain evidence and make representations. Lord Wilson agreed that there was a clear breach. Lord Mance and Lord Hughes, with whom Lord Neuberger agreed, accepted a failure to involve the detainee but would not have finally condemned the reviewers’ impartiality without more evidence. Lord Reed and Lord Kerr agreed that article 5(4) was not met.
A breach of article 5(4) did not automatically make the detention unlawful under article 5(1) or prove that he should have been released earlier. If the assumed facts were proved, a fair review might still have upheld his detention.
Verdict: By seven votes to two, the Court dismissed Mr Al-Waheed’s appeal and allowed the Government’s appeal concerning Serdar Mohammed in part. The resolutions authorised detention necessary for imperative security reasons. Mr Mohammed lacked an effective means of challenging his detention, and intelligence gathering alone could not justify it. Compensation depended on how far unlawful detention had prolonged his loss of liberty. The Court assessed no sum.
Source: Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent) [2017] UKSC 2
