Sankoh, Re

A writ of habeas corpus may issue against government authorities only where there is an arguable evidential basis that the person detained is in their custody or under their de facto control. Political influence, assistance with transport or security, and public statements about the detainee’s prosecution do not establish such control. The relevant date is ordinarily the date on which the proceedings were issued. Where the alleged detention is outside the United Kingdom and the respondent has no custody or control, the court will not compel the executive to seek the detainee’s release or delivery as part of foreign policy.

The applicant, said to be the wife of Foday Saybana Sankoh, sought habeas corpus against the Secretaries of State for Foreign and Commonwealth Affairs and Defence. She alleged that Mr Sankoh, detained in Sierra Leone, was in the custody or control of British authorities.

Elias J refused the writ on 1 September 2000. The applicant appealed, relying on British military assistance in transferring Mr Sankoh, alleged political influence over Sierra Leone, ministerial statements and newspaper reports. The central issue was whether those matters established an arguable case of British custody or de facto control over the detention.

1. Appeal dismissed. The evidence did not establish, even arguably, that Mr Sankoh was in the custody, power or control of either Secretary of State or any British governmental authority at the relevant date.
2. A writ of habeas corpus requires an evidential basis for concluding that the respondent has custody or de facto control over the detainee, such that the respondent may secure the detainee’s release or production. The fact that British forces provided transport, security or limited medical assistance while Mr Sankoh remained in Sierra Leonean police custody did not meet that threshold.
3. Political influence over the Sierra Leone Government, British support for bringing Mr Sankoh to justice and a ministerial statement that his freedom would not be traded did not amount to custody or control. The critical date was the date on which the proceedings were issued. Newspaper reports concerning events around 17 May 2000 added nothing material to the evidence concerning control in July.
4. The case was materially different from The King v the Secretary of State ex parte O'Brien [1923] 2 KB 361, where there was a live factual question whether the applicant remained subject to the Secretary of State’s control and could be returned to the jurisdiction.
5. In the absence of British custody or control, requiring the Government to persuade Sierra Leone to identify Mr Sankoh’s whereabouts or deliver him up would improperly involve the court in directing the executive’s foreign policy. The appeal was dismissed with indemnity costs, and the respondent was permitted to seek restoration concerning a possible wasted costs order.

• Court of Appeal (Civil Division): appeal dismissed; indemnity costs ordered, with liberty to seek restoration concerning wasted costs.
• Queen’s Bench Division: Elias J refused the application for a writ of habeas corpus on 1 September 2000.