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

implicit view that detention pending the availability of prison capacity to the NDS
was the sole reason for his detention in the third period. So far as the judge rejected
the possibility that SM was also being detained for imperative reasons of security,
he did so on a false legal premise.
86. There is, as it seems to me, a real issue about whether imperative reasons of
security continued to operate after the first 96 hours concurrently with other factors.
It is clear from SOI J3-9, the relevant part of which I have quoted, that the British
authorities in Afghanistan did not regard themselves as entitled to detain any person
unless his detention was and remained necessary for “self-defence, force protection,
or wider mission accomplishment.” Persons arrested on these grounds might,
consistently with the Security Council Resolutions, have been detained for as long
as they continued to represent a threat. In fact, however, as the minister explained to
Parliament when announcing the new detention policy in November 2009, the policy
was to hold them only pending transfer to the Afghan authorities or (subject to
ministerial authorisation) for intelligence exploitation. In the absence of one or other
of these grounds, the detainee would be released, as SM would have been if the NDS
had shown no interest in him on 4 May 2010. For that reason, the only question with
which a minister was concerned when considering whether to authorise extended
detention for intelligence exploitation was whether it was justified for that purpose.
There is nothing in SOI J3-9 or in the ample documentation concerning SM’s
detention to suggest that the minister was concerned with any other grounds for his
detention.
87. It seems probable that even after ministers had authorised continued
detention for intelligence exploitation purposes, it was a precondition for the actual
exercise of that authority in the field that detention should be assessed as necessary
for imperative reasons of security. The detention documentation relating to SM
appears to suggest that this test was applied at each review after the ministerial
authorisation had been received. On each occasion, the Detention Review
Committee’s assessment for the authorising officers included an account of the
circumstances of his capture, followed by the following statement:
“Legal issues. The test to be applied is whether, on the balance
of probabilities, [SM] has done something which makes him a
threat to self-defence, force protection, or wider mission
accomplishment. Having considered that [SM] was seen
running from a Col known to have links with Obj WHITE, in
an attempt to evade [redacted] after they had been engaged
from nearby compounds, the route along which he was running
was found to contain a hidden RPG launcher and two rounds
and the assessment that he may be Obj WHITE’s deputy, I
advise that the policy test is satisfied.”
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