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

The new policy was notified to NATO, which made no objection. The judge found
that it was also accepted by ISAF headquarters.
35. The detention policy applied by HM forces in Afghanistan was contained in
UK Standard Operating Instructions (SOI) J3-9 (Stop, Search and Detention
Operations in the Herrick JOA), issued on the authority of UK Permanent Joint
Headquarters. It was originally issued in 2006. At the time of SM’s capture, the
version in force was Amendment 1, issued on 6 November 2009. This was replaced
on 10 April 2010, three days after SM’s capture, by Amendment 2, which was issued
to forces in the field two days later on 12 April. Since Amendment 2 was in force
for substantially the whole of the period when the judge found SM’s detention to
have been unlawful, I shall refer throughout to this version.
36. SOI J3-9 authorised British troops to “conduct stops, search, detention and
questioning procedures in accordance with [Security Council Resolutions] for
reasons of force protection, mission accomplishment and self-defence.” The
introduction sets out in general terms the principles governing detention policy. It
provided:
“6. Detention Criteria. UK Forces are authorised to
conduct stop, search, detention and question procedures in
accordance with Reference A for reasons of Force Protection,
Mission Accomplishment and Self-Defence. ISAF authorises
detention for up to a maximum of 96 hours following the point
of detention …
7. Post-detention requirements. Within 96 hours
detainees will in most cases be either handed over to the
Afghan Authorities in accordance with [the UK/Afghan
Memorandum of Understanding] or released. Detention and
evidence-gathering processes must be managed as a capability
to ensure that they support the collection of tactical intelligence
and assist the Afghan criminal justice system in achieving
lawful convictions. In almost all cases, ‘Afghan Authorities’ in
this context refers to the National Directorate of Security
(NDS) and it is to the NDS that transfers will normally be made
… Detainees should only ever be detained beyond 96 hours in
exceptional circumstances as follows:
a. On medical or logistic grounds, with HQ ISAF
authorisation (and ministerial authority where
appropriate) …
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