Serdar Mohammed (Respondent) v Ministry of Defence (Appellant)

Recommendations

Info

Appellant (Al-Waheed) Richard Hermer QC Andrew Clapham Ben Jaffey Alison Pickup Nikolaus Grubeck (Instructed by Leigh Day) Respondent (S Mohammed) Richard Hermer QC Andrew Clapham Ben Jaffey Alison Pickup Nikolaus Grubeck Julianne Kerr Morrison (Instructed by Leigh Day) Respondent James Eadie QC Derek Sweeting QC Karen Steyn QC James Purnell (Instructed by The Government Legal Department) Appellant James Eadie QC Sam Wordsworth QC Karen Steyn QC Julian Blake (Instructed by The Government Legal Department) First Interveners Shaheed Fatima QC Paul Luckhurst (Instructed by Public Interest Lawyers) Interveners 2-5 (Written submissions only) Jessica Simor QC (Instructed Hogan Lovells International LLP) Interveners: (1) Mohammed Qasim, Mohammed Nazim, Abdullah (2) International Commission of Jurists (3) Human Rights Watch (4) Amnesty International (5) The Open Society Justice Initiative
LORD SUMPTION: (with whom Lady Hale agrees) Introduction 1. The United Kingdom was an occupying power in Iraq from May 2003, and a mandatory power acting in support of the Iraqi government from June 2004 until her withdrawal in 2011. She was a mandatory power in Afghanistan between December 2001 and her withdrawal early in 2015. In both countries, the United Kingdom’s international status depended throughout on successive resolutions of the United Nations Security Council. Substantial numbers of British troops were engaged in both theatres as part of separate multi-national forces, primarily in southern Iraq and in the Afghan province of Helmand. They were required to deal with exceptional levels of violence by organised armed groups. In the course of their operations, prisoners were taken and detained in British military facilities for varying periods of time. 2. These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. In both cases, the claim is based in part on article 5(1) of the European Convention on Human Rights, which provides that no one shall be deprived of his liberty except in six specified cases and in accordance with a procedure prescribed by law. They also rely on article 5(4), which requires that the detainee should be entitled to take proceedings by which the lawfulness of his detention may be tested. The appeals have been heard together with a view to resolving one of the more controversial questions raised by such actions, namely the extent to which article 5 applies to military detention in the territory of a non-Convention state in the course of operations in support of its government pursuant to mandates of the United Nations Security Council. 3. Abd Ali Hameed Ali Al-Waheed was captured by HM forces at his wife’s home in Basrah on 11 February 2007 during a search. The Secretary of State contends that components for improvised explosive devices (IEDs) and explosive charges and various other weaponry were found on the premises. He was held at a British army detention centre for six and a half weeks. He was then released after an internal review had concluded that a successful prosecution was unlikely, as there was no evidence that he had personally handled the explosives. At a pre-trial review before Leggatt J, it was common ground that so far as Mr Al-Waheed’s claim was based on detention in breach of article 5(1) of the Convention, the judge and the Court of Appeal would be bound to dismiss it by the decision of the House of Lords Page 2
Page 1: Hilary Term [2017] UKSC 2 On appeal
Page 5 and 6: statement of facts and issues in Se
Page 7 and 8: detention is authorised on the foot
Page 9 and 10: customary international law in a no
Page 11 and 12: eaffirmed the authorisation conferr
Page 13 and 14: situation.” What was meant by the
Page 15 and 16: Germany and Norway (2007) 45 EHRR S
Page 17 and 18: fulfil certain responsibilities spe
Page 19 and 20: this, and that thereafter detention
Page 21 and 22: . With PJHQ and ministerial authori
Page 23 and 24: considered necessary to prevent his
Page 25 and 26: International Court of Justice cons
Page 27 and 28: 46. In Bankovic v Belgium (2001) 44
Page 29 and 30: the level of international law, by
Page 31 and 32: 5 of the Convention. The question w
Page 33 and 34: advisory opinion concerning Legal C
Page 35 and 36: The Convention authorises the inter
Page 37 and 38: insurrection, with a view to defend
Page 39 and 40: that it matters to which category t
Page 41 and 42: planned transport assets or NDS fac
Page 43 and 44: . PJHQ. PJHQ J3 will review all per
Page 45 and 46: een authorised by Ministers for the
Page 47 and 48: exploitation. While this must be a
Page 49 and 50: The judgment of those involved was
Page 51 and 52: were to be made, whether by the Det
Page 53 and 54:
Convention, and would leave that qu
Page 55 and 56:
104. This would not necessarily mat
Page 57 and 58:
practice also conflicted with the U
Page 59 and 60:
LORD WILSON: 113. I agree with the
Page 61 and 62:
119. There can be no doubt that “
Page 63 and 64:
Convention III. Insofar, alternativ
Page 65 and 66:
detentions had to comply with the p
Page 67 and 68:
Council to address what it had conc
Page 69 and 70:
This statement has stood the test o
Page 71 and 72:
There is nothing to indicate that t
Page 73 and 74:
should be made for non-state actors
Page 75 and 76:
willingness to deploy forces to mai
Page 77 and 78:
and different power to detain, base
Page 79 and 80:
international law of SCRs under Cha
Page 81 and 82:
(b) Afghanistan 168. The relevant S
Page 83 and 84:
the commitment of the parties to th
Page 85 and 86:
“This will typically lead to a re
Page 87 and 88:
184. Mr Devine also gave evidence t
Page 89 and 90:
did not pursue either of these prot
Page 91 and 92:
195. As to the danger or risks for
Page 93 and 94:
“The test to be applied is whethe
Page 95 and 96:
the present circumstances, alternat
Page 97 and 98:
applicable rules of international h
Page 99 and 100:
possible. He was then given the opp
Page 101 and 102:
might even be thought to be contrar
Page 103 and 104:
220. There is of course a question
Page 105 and 106:
purpose of producing him to the Afg
Page 107 and 108:
(v) The court should depart from th
Page 109 and 110:
... (f) the lawful arrest or detent
Page 111 and 112:
its invitation or with its consent.
Page 113 and 114:
250. So far as civilians are concer
Page 115 and 116:
domestic law rather than as prisone
Page 117 and 118:
view: to give only a few recent exa
Page 119 and 120:
Arguments against inferential reaso
Page 121 and 122:
Concluding Observations: Initial Re
Page 123 and 124:
on the absence of adequate protecti
Page 125 and 126:
National Force to continue efforts
Page 127 and 128:
freedoms’. Article 24(2) of the C
Page 129 and 130:
(3) Al-Dulimi v Switzerland 289. Th
Page 131 and 132:
circumstances, his detention was co
Page 133 and 134:
was identical to that considered in
Page 135 and 136:
involving contracting states partic
Page 137 and 138:
316. It follows that it was necessa
Page 139 and 140:
under ground (1) based on the SCRs,
Page 141 and 142:
international police personnel”.
Page 143 and 144:
caused by local logistical conditio
Page 145 and 146:
Capability, dated June 2008: NATO w
Page 147 and 148:
Kingdom national sovereignty”. Af
Page 149 and 150:
“On some occasions, practical, lo
Page 151 and 152:
article 5(1) that the detention sho
show all

Serdar Mohammed (Respondent) v Ministry of Defence (Appellant)

Create successful ePaper yourself

Delete template?

Save as template?