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

A military interrogation policy must be assessed on its face against the legal standards it adopts, assuming compliance with its terms. Common Article 3 imposes a general positive duty of humane treatment as well as prohibitions on particularly grave conduct. Its content is not confined to the high minimum-severity threshold under Article 3 ECHR. Other Geneva Convention provisions may illuminate the standard, but cannot be imported wholesale. A tightly controlled short period of stern or loud questioning, expressly excluding threats, coercion, insults, humiliation, degradation and fear of violence, did not cross the applicable threshold. Individual breaches by interrogators did not demonstrate an inherent defect or unacceptable risk in the policy. The claimant also lacked standing because he was remote from its operation and a directly affected claimant could bring the challenge.

The appellant sought judicial review of a Secretary of State for Defence policy authorising the challenge direct interrogation technique for persons captured by UK forces in armed conflict. The proceedings originally concerned the former harsh approach and continued after the policy was replaced. The Divisional Court rejected the substantive challenges, holding that the policy was compatible with the applicable humanitarian standards and did not create an unacceptable risk of unlawful implementation, but left standing undecided: [2013] EWHC 95 (Admin).

The appeal concerned the content of the humane-treatment obligation under Common Article 3, the relevance of Article 17 of Geneva III, the alleged risk of unlawful implementation or common-law assault, and whether the substituted claimant had sufficient standing.

Lloyd Jones LJ delivered the lead judgment. Ryder LJ and Tomlinson LJ agreed.

1. Applicable standards. The challenge was to the policy itself. The court therefore considered the policy on its face, assuming that it would be operated according to its terms. Because the policy expressly required compliance with Common Article 3 and asserted compliance with Article 17 of Geneva III, those standards supplied the relevant measure of legality.
2. Humane treatment. Common Article 3 imposes both a general positive duty to treat detainees humanely and a negative duty to abstain from inhumane conduct. The four express prohibitions are particularly grave examples and do not exhaust the general duty. Other Geneva Convention provisions may cast light on its content, but cannot be imported wholesale. The high minimum-severity threshold under Article 3 ECHR was not an appropriate test for Common Article 3.
3. Policy legality. The new policy was materially different from the former harsh approach. The short, controlled verbal shock authorised by challenge direct, subject to prohibitions on threats, coercion, insults, humiliation, degradation, fear of violence and physical contact, did not constitute inhumane treatment or prohibited coercion, threats, insults or unpleasant or disadvantageous treatment. The exclusion of prisoners of war was a precautionary policy choice and did not establish irrationality.
4. Unacceptable risk. The procedural-fairness authorities, including R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219, did not extend automatically to this substantive policy challenge. The video evidence showed breaches of policy, but those breaches were expressly prohibited and did not flow from an inherent defect in the policy. The policy itself created no unacceptable risk of unlawful conduct or common-law assault.
5. Standing and outcome. Standing depended on context and the purposes of judicial review. The appellant was not directly affected, was remote from the policy, was not a victim under section 7(7) of the Human Rights Act 1998, and did not represent a situation requiring a public-interest exception. A person subjected to the technique could bring a more appropriate fact-based challenge. The appeal was dismissed on the merits and, additionally, for lack of standing.

1. Court of Appeal (Civil Division) — The appeal was dismissed on the merits and additionally because the appellant lacked standing: [2014] EWCA Civ 1087 .
2. Administrative Court — The Divisional Court rejected both substantive grounds of challenge, expressed doubts about standing, but did not determine it: [2013] EWHC 95 (Admin) .