Equality and Human Rights Commission v Prime Minister & Ors

In practical operational guidance, “real risk” and “serious risk” of torture or cruel, inhuman or degrading treatment may be materially interchangeable. The court need not treat such guidance as a definitive statement of criminal law. However, an exception permitting limited hooding by foreign liaison services was too uncertain and unworkable. It risked exposing officers to personal liability and conflicted with the Government’s policy and the unqualified prohibition applicable to UK Armed Forces. The exception had to be amended to remove hooding.

Two joined judicial review claims challenged Government guidance concerning UK personnel dealing with detainees held overseas by foreign liaison services. The Equality and Human Rights Commission challenged the use of “serious risk” in the guidance, alleging that it misstated domestic criminal law and international obligations. Alaa’ Nassif Jassim Al Bazzouni challenged an exception concerning methods of obscuring vision or hooding during arrest or transit.

The court considered standing, whether the guidance was unlawful on its face, the relationship between “real risk” and “serious risk”, and whether the hooding exception gave sufficiently lawful and workable instructions.

1. Standing and permission. The Commission had standing under Equality Act 2006 sections 1, 3 and 30 and could rely on Human Rights Act 1998 section 7(1)(b) without being a victim or potential victim. Mr Al Bazzouni was sufficiently representative of persons who might have standing. Permission was granted on the Commission’s Ground 3 and to Mr Al Bazzouni.
2. Risk threshold. In practical guidance for officers on the ground, “real risk” and “serious risk” of torture or CIDT had no material difference. Torture and CIDT were inherently serious, and the guidance required officers either not to proceed or to refer the matter to senior personnel or Ministers in the relevant circumstances. R v Bryce did not establish that “real risk” was the legally mandatory formulation. The Commission’s challenge therefore failed.
3. International and criminal law. The court declined to determine wider questions concerning “acquiescence” under the United Nations Convention against Torture, customary international law and secondary liability. The guidance was practical guidance rather than a criminal-law treatise or a binding statement for a later prosecution.
4. Hooding. The Annex’s exception could apply only to dealings by intelligence officers with persons detained by foreign liaison services. It could not authorise hooding by UK Armed Forces, which the Joint Doctrine Publication prohibited without qualification. The exception was unworkable because officers could not reliably judge whether hooding would pose no risk to physical or mental health. It should be amended to omit hooding. Mr Al Bazzouni’s claim succeeded to that extent, although no declaration or other substantive relief was then made.

First-instance joined judicial review proceedings. No prior merits decision is stated.