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

in R (Al-Jedda) v Secretary of State for Defence [2008] AC 332. The Appellate
Committee had held in that case that article 5(1) was displaced by the United Nations
Security Council Resolutions authorising military operations in Iraq. The judge was
therefore invited to dismiss the claim under article 5(1) by consent and grant a
certificate for a leap-frog appeal directly to the Supreme Court. A limited number of
facts have been agreed, but there are no findings.
4. Serdar Mohammed, whom I shall refer to as “SM”, was captured by HM
forces in Afghanistan on 7 April 2010. The Secretary of State contends that he was
captured in the course of a planned operation involving a firefight lasting ten hours
in which a number of men were killed or wounded, and that he was seen to flee from
the site, discarding a rocket-propelled grenade launcher and ammunition as he went.
He was brought into Camp Bastion at Lashkar Gah, which was the joint operating
base of the British army in Helmand. Intelligence is said to have identified him
shortly afterwards as a senior Taliban commander who had been involved in the
large-scale production of IEDs and was believed to have commanded a Taliban
training camp in 2009. SM was detained for a period of three and a half months in
British military holding facilities until 25 July 2010, when he was transferred to the
Afghan authorities. He was subsequently convicted by the Afghan courts for
offences relating to the insurgency and sentenced to ten years’ imprisonment. In his
case, the procedural history is more complicated. Leggatt J directed three
preliminary issues to be determined on the assumption that the circumstances of
SM’s capture and detention, as pleaded in the Secretary of State’s defence, were
true. One of the preliminary issues concerned the relationship between article 5 of
the Convention and the international law governing detention in the course of armed
conflict. In the result, the judge held that in Afghanistan HM forces had no power,
either under the relevant Security Council Resolutions or under customary
international law, to detain prisoners for any longer than was required to hand them
over to the Afghan authorities, and then for no more than 96 hours. He also found
that they had no greater power under the domestic law of Afghanistan. On that
footing, he considered that in detaining SM the United Kingdom was in breach of
article 5(1) and (4) of the Convention: see [2014] EWHC 1369 (QB). The Court of
Appeal, although differing from some aspects of the judge’s reasoning, reached the
same conclusion: see [2016] 2 WLR 247. These decisions, and the reasoning behind
them, have significant implications for the Ministry of Defence and for British
troops deployed to Iraq or Afghanistan and indeed other theatres to which they may
be deployed under UN mandates.
5. The Secretary of State formulated eight grounds on which he sought leave to
appeal to the Supreme Court in Serdar Mohammed. He received permission to
appeal, either from the Court of Appeal or from the Supreme Court on six of them,
the question of permission for the other two being deferred until the hearing. As a
result of directions given in the course of the appeals, the sole ground of appeal
before us at the opening of the hearing was the Secretary of State’s ground 4. In the
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