Evans, R (on the application of) v Secretary of State for Defence

A policy prohibiting the transfer of detainees where there is a real risk of torture or serious mistreatment must be applied by the court through its own assessment of risk. In a class case, a consistent pattern of abuse is relevant but does not replace the ultimate real-risk question. The assessment must consider the evidence as a whole, including the operation of safeguards, assurances, monitoring and verification. Assurances may be relied upon, but their weight depends on the circumstances and the effectiveness of practical safeguards. Risk may differ between detention facilities. Transfers to a facility may remain lawful only if specified monitoring conditions, including regular private interviews, are observed.

The claimant sought judicial review of the Secretary of State’s policy and practice concerning the transfer of suspected insurgents detained by UK forces in Afghanistan to Afghan custody. The policy prohibited transfer where there was a real risk of torture or serious mistreatment. Permission was granted by consent on 29 June 2009.

The central issue was whether transfers to facilities operated by Afghanistan’s National Directorate of Security were compatible with that policy, having regard to reports of mistreatment, individual allegations, assurances in the UK-Afghanistan Memorandum of Understanding and Exchange of Letters, and the practical monitoring arrangements.

1. The court determined for itself whether detainees transferred to Afghan custody faced a real risk of torture or serious mistreatment. The standard was absolute and did not vary according to operational requirements. The court treated the principles relevant to article 3 of the ECHR as equally relevant to the Secretary of State’s policy.

2. In a class case, the court followed the approach in Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807, subject to the caution in Batayav v Secretary of State for the Home Department (No 1) [2003] EWCA Civ 1489. A consistent pattern of torture or serious mistreatment was relevant, but the ultimate question remained whether the evidence as a whole established a real risk. The court rejected an unduly high threshold based on universality or near certainty.

3. The UK-Afghanistan Memorandum of Understanding and related assurances were capable in principle of providing relevant safeguards. Their original confidentiality did not prevent reliance upon them, although it affected the weight to be given to them. Written assurances alone provided limited comfort. Their effectiveness depended on practical implementation, including access, private interviews, record-keeping and verification.

4. The risk had to be assessed separately for each NDS facility. There was a real risk at NDS Kabul, and transfers there were unlawful. Transfers to NDS Kandahar and NDS Lashkar Gah could proceed only if the UK obtained regular access to each transferee, including a private interview on each occasion, and considered immediate suspension if access was denied without good reason or a complaint of mistreatment could not promptly be dismissed as unfounded.

5. The court concluded that transfers to NDS Kandahar and NDS Lashkar Gah could continue subject to those conditions, but transfers to NDS Kabul would breach the Secretary of State’s policy. The court made no final order on the judicial review application at that stage and invited written submissions on disposal.

This was a first-instance judicial review. Permission was granted by consent on 29 June 2009. The Divisional Court determined the lawfulness of the current transfer practice and invited written submissions on consequential disposal.