Hussein v Secretary of State for Defence

Permission to appeal may be granted where the claimant’s standing is genuinely doubtful but the proposed appeal raises issues of sufficient public importance to warrant consideration by the full appellate court. The court may defer the standing question rather than determine it at the permission stage, particularly where the proceedings have followed an unusual course and a judgment on the substantive issues already exists. The grant of permission does not imply that the grounds are strong. Standing may therefore be directed to be determined together with the substantive appeal.

The claimant sought permission to appeal against the Divisional Court’s dismissal of his judicial review claim, reported at [2013] EWHC 95 (Admin). The claim challenged Ministry of Defence policies governing tactical questioning and interrogation of persons captured by United Kingdom Armed Forces, particularly the direct Challenging Approach involving shouting.

The respondent disputed standing because the claimant had been arrested before the challenged approach was introduced, had no realistic prospect of being affected by the policies, and was not directly affected for Convention purposes. The claimant relied on his past treatment, representative standing, and the public importance of vindicating the rule of law. The central procedural issue was whether standing should be determined at the permission hearing or deferred to the full court hearing the substantive appeal.

1. Permission granted. The court had real concerns about whether the claimant had standing, but considered that the proposed appeal raised issues deserving consideration. The grant of permission did not indicate that the grounds were strong.
2. The proposed grounds concerned the proper application of Common Article 3 of the Geneva Conventions of 1949, the relationship between the standards applicable in international and non-international armed conflicts, the distinction between positive humane-treatment obligations and prohibitions on ill-treatment, and the treatment of prisoners of war and civilians during interrogation. They also raised whether an apparently lawful policy might be unlawfully exercised in particular circumstances.
3. In the circumstances, including the unusual procedural history and the existence of a judgment addressing the issues, it was inappropriate to determine standing at the permission hearing. The question of standing was directed to be determined by the full court at the same time as the substantive appeal.
4. Lord Justice Moore-Bick agreed.

• Court of Appeal (Civil Division): Permission to appeal was granted, with standing directed to be determined by the full court at the substantive appeal hearing.
• Divisional Court: The claimant’s judicial review application was dismissed, reported at [2013] EWHC 95 (Admin).