XX (Respondent) versus Ministry of Defence (Appellant) [2017] UKSC 2
- 2017
- United Kingdom
Topics
Membership in a terrorist organisationLegal bases
European Convention on Human RightsCourts
The Supreme Court (UKSC), United KingdomLaws
Right to Liberty Torture, degrading and inhuman and treatmentFacts
This case is about the liabilities of the United Kingdom’s government for alleged tortuous acts done by HM Forces in the course of operations overseas (Iraq and Afghanistan) or by foreign governments in which UK officials are alleged to have been complicit. On April 7th, 2010 the applicant was captured by British forces in Afghanistan as part of a planned operation that took place there. This included a ten-hour fire fight where the applicant was seen fleeing, discarding a rocket propelled grenade launcher and ammunition. The applicant was identified by intelligence as a senior Taliban commander and was detained by British facilities until July 2010 when he was transferred to Afghan authorities. The detention, for the purpose of the trial, was divvied into three phases: i) the first 96 hours ii) 11th April-4th May 2010 when the applicant was interrogated iii) 4th May-25th July when the applicant was held pending transfer to the Afghanistan authorities. The appellant alleged that his detention was in breach of Article 5 of the ECHR. The High Court held that British forces had no power to detain prisoners for any longer than was required to transfer them to the Afghan authorities, and then for no more than 96 hours. Accordingly, it held that the detention of the applicant breached article 5(1) and 5(4) of the ECHR. The Court of Appeal reached the same conclusion, albeit for different reasons. The Ministry of Defence appealed against this decision to the Supreme Court.
Legal grounds
Article 5(1) & Article 5(4) of the ECHR.
Findings
The Supreme Court, by a majority, held that British forces had the power to take and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR Article 5(4) because they did not afford prisoners an effective right to challenge their detention. In support of their judgement, the court held, by a majority: (a) that the authority to capture and detain enemy combatants for imperative reasons of security was implicitly conferred by the relevant Security Council resolutions (e.g. UNSCR 1386 (2001) and UNSCR 1546 (2004)); (b) that individual states participating in the International Security Assistance Force (“ISAF”) in Afghanistan were not limited by ISAF’s policy of restricting detention to 96 hours, so, the United Kingdom was entitled to adopt its own detention policy (c) that the six permitted grounds for detention in Article 5(1) ECHR were formulated in relation to peacetime conditions and could not be regarded as exhaustive in conditions of armed conflict. (d) that the procedure governing military arrest in Afghanistan was suitably clear and precise to meet the standards of article 5(1). (e) that the detention of SM did not fall within any of the six specified grounds in article 5(1), during the second period of his detention. He was not at any time held pending “extradition” to the Afghan authorities, because transfer to the civil authorities within Afghanistan did not constitute an extradition within article 5(1)(f). And finally (f) that a finding of breach of the procedural standards required by article 5(4) will not necessarily entitle SM to damages.