Ali Hussein v Secretary of State for Defence

A questioning policy permitting a short, controlled period of loud and stern comments may be lawful. Whether treatment is humane must be assessed in the context of legitimate interrogation, while observing the absolute prohibitions on torture, cruel, inhuman, degrading, intimidating or coercive treatment. Detailed safeguards, training, authorisation, recording requirements and restrictions on vulnerable persons may prevent an unacceptable risk of unlawful use. Shouting alone does not constitute common assault, oppression or coercion. A policy may be upheld where it is lawful on its face and the controls adequately address the practical risk of unlawful implementation.

The claimant challenged the lawfulness of the Ministry of Defence policies governing tactical questioning and interrogation of persons captured by UK Armed Forces. The challenge concerned the Challenging Approach, particularly Challenge Direct, which permitted short bursts of loud and stern comments in limited circumstances. The claimant alleged that the approach could amount to common assault, breach the Geneva Conventions, breach the European Convention on Human Rights and create an unacceptable risk of unlawful implementation. The court also considered standing and other threshold objections. The central issue was whether the revised policy, assessed on its own terms and in practical operation, was unlawful.

1. The claim was dismissed. The court was not persuaded that the claimant had standing, but it declined to rely on standing because the claim failed on its merits.

2. Challenge Direct did not, when used by a properly trained questioner in accordance with the policy, create a reasonable possibility of common assault. The offence would require foresight that shouting would cause the person questioned to apprehend immediate violence. Physical violence and threats of violence were prohibited, and the policy did not create a real risk of that apprehension.

3. The court did not need to decide whether the Geneva Conventions were incorporated into domestic law. The defendant had accepted by policy that captured persons must be treated humanely and in accordance with applicable Convention obligations. Any breach of that self-imposed standard would be unlawful in public law.

4. Humane treatment had to be assessed in the context of legitimate interrogation. Questioning was permissible, and the relevant question was whether the technique contravened the prohibitions on inhumane, degrading, coercive or intimidating treatment. Applying the guidance derived from Public Committee Against Torture v Israel (2000) 7 BHRC 31, and the Convention materials, short-lived controlled shouting did not breach that standard.

5. The greater protection given to prisoners of war under Article 17 of Geneva Convention III did not make it irrational to permit the approach for other captured persons. The policy’s exclusion of prisoners of war was an additional safeguard, not evidence that the general policy was defective.

6. The policy was not unlawful merely because misuse was theoretically possible. Its safeguards, including training, authorisation, limits on frequency and duration, reporting requirements and protection for vulnerable persons, addressed the risk of unlawful implementation. The policy also required doubts about vulnerability to be resolved in the captured person’s favour.

7. There was no breach of Article 3 of the ECHR. Any interference with private life would be proportionate under Article 8(2). The permitted approach did not amount to oppression for the purposes discussed in R v Furlong [1987] QB 426 and R v Mushtaq [2005] 1 WLR 1513.