An Afghan suspect was detained illegally by British forces for almost four months and denied access to a lawyer, . Serdar Mohammed, who was captured by UK soldiers in April 2010, was not handed over to the Afghan security services until July that year, despite regulations requiring any transfer to take place within 96 hours. Mohammed, who was eventually released earlier this year to return to his home in Helmand province, claimed that the Afghan authorities tortured him.
The case highlights the effect of UK forces overseas being subject to the European convention on human rights rather than the Geneva conventions on warfare, a legal position about which the judges – the lord chief justice, Lord Thomas, Lord Justice Lloyd Jones and Lord Justice Beaston – expressed misgivings.
In the judgment, they referred to their “significant reservations in respect of the correctness of the decision extending the ECHR to the battlefield as established by the decision of the Strasbourg court in [the case of ] Al-Skeini. We are, however, bound by the decision of the supreme court in Smith v MoD, which applies the decision in Al-Skeini.
“Difficult questions, both legal and practical, will undoubtedly arise as to how the ECHR protections, designed to regulate the domestic exercise of state power, are to be applied in the very different context of extraterritorial military operations.”
Nonetheless, the three judges said: “The arrangements made by the secretary of state in relation to the deployment of HM armed forces to and for the detention of those engaged in attacking HM armed forces did not enable persons to be detained by HM armed forces for longer than 96 hours.” The judges concluded: “[Mohammed’s] claim succeeds because the secretary of state is unable to show a lawful basis for the detention.”
Mohammed is seeking damages for his unlawful detention.
The judgment also dealt with other Afghan detention cases and that of Yunus Rahmatullah, a Pakistani citizen who was detained in Iraq in 2004 by British forces and eventually transferred to the US detention facility at Bagram airbase in Afghanistan, where he remained in custody for 10 years. The judges said they could not determine whether the government could avail itself of a defence of “act of state”, which would have to be heard before another tribunal.
Sapna Malik, a partner at the law firm Leigh Day, which represented Mohammed, said: “On the 800th anniversary of the Magna Carta, establishing that imprisonment should not occur without due legal process, the court of appeal’s unanimous judgment is vitally important in upholding the rule of law even in the most trying of circumstances.
“The lord justices have rightly recognised the fundamental importance of the right to liberty, which requires a lawful authority for any detention, and for core procedural safeguards to be afforded to a detainee, even in a situation of armed conflict.
“It is also reassuring to note that the court has affirmed that to deny a remedy to a victim of a wrong should always be regarded as exceptional, and that any exception must be necessary and requires strict and cogent justification, which were not found to be present in this case.”
A spokesperson for Public Interest Lawyers, which represented other Afghan cases cases, said: “Where UK personnel are operating abroad, international human rights law will apply, and they must act in accordance with that law. The MoD must now make sure that UK armed forces personnel, like civilian police, are trained to know what the law does and does not allow. This is yet another overseas human rights case which has been scrutinised very carefully by the courts, at first instance and on appeal, and where the MoD has lost.”
Kat Craig, legal director at the human rights group Reprieve, said: “The government is trying every trick in the book to ensure that torture victims do not get their day in court, but today they have been thwarted. Yunus Rahmatullah suffered horribly at the hands of US and UK personnel, and his case deserves to be heard. The prime minister is fond of saying that ‘sunlight is the best disinfectant’ – it is disturbing that his government seems to be following the opposite course in this case.”
But the minister for the armed forces, Penny Mordaunt, said: “We are extremely disappointed with this judgment and will be seeking leave to appeal to the supreme court. We were right to detain Serdar Mohammed, who we believed to be involved in the production of improvised explosive devices (IEDs) on an industrial scale.
“During his capture, our troops came under heavy fire, and three of them were wounded. The notion that dangerous insurgents cannot be detained for more than a few hours is ludicrous. Our bill of rights will help address these concerns, as will other measures ministers have been working on since the election. We will announce proposals later this year.
“This judgment further demonstrates the need to ensure the primacy of international humanitarian law such as the Geneva conventions, which were designed for conflict situations. Our armed forces must be able to detain enemies who attempt to maim and kill UK service personnel and civilians. If the law does not allow that, then the law must change.”