Mohammed & Ors v Secretary of State for Defence

UK military detention abroad may fall within the European Convention on Human Rights where British agents exercise physical power and control over the detainee.

Although the relevant United Nations Security Council resolution authorised ISAF to detain where necessary for its mandate, ISAF’s policy limited detention to 96 hours, subject to narrow logistical exceptions. A separate United Kingdom policy permitting longer detention was not authorised by ISAF. In the current state of international humanitarian law, neither treaty nor customary law supplied a detention power in an internationalised non-international armed conflict. Any assumed power also required humane treatment, prompt reasons, impartial periodic review and an opportunity for the detainee to participate. Domestic act of state did not bar the foreign-law tort claim absent compelling public-policy grounds.

The appeals arose from preliminary rulings by the Administrative Court on claims concerning detention by British forces in Afghanistan and Iraq. In the main appeal, Serdar Mohammed claimed under the Human Rights Act 1998 and Afghan tort law that his detention after 96 hours was unlawful. Leggatt J decided the principal issues against the Secretary of State in [2014] EWHC 1369 (QB).

Conjoined appeals concerned Afghan detainees and claims by Yunus Rahmatullah and Iraqi civilians arising from detention and transfer to United States custody. The central questions were whether the conduct was attributable to the United Nations, whether there was lawful authority to detain, whether procedural safeguards were sufficient, and whether domestic act of state barred claims under foreign law.

1. Disposition. The appeal concerning Mohammed was allowed on the act-of-state issue. The appeals were dismissed in all other respects. The orders concerning Rahmatullah and the Iraqi civilian claimants were varied so that their foreign-law tort claims could be barred only if compelling public-policy grounds were established.
2. Attribution and immunity. The court accepted that ISAF was attributable to the United Nations because the Security Council retained effective or ultimate authority and control through a clear chain of command. Mohammed’s detention was nevertheless attributable to the United Kingdom. It was carried out, authorised and reviewed under a United Kingdom chain of command and national policy. ISAF had neither authorised nor tacitly accepted the extended detention. The immunity claimed under section 22 of the General Convention was therefore misconceived.
3. ECHR and detention authority. Bound by Smith v Ministry of Defence and Al-Skeini v United Kingdom, the court held that Article 5 applied to the detention. Afghan law permitted arrest but not detention beyond the period required for handover. The relevant UNSCR authorised detention necessary for ISAF’s mandate, but ISAF SOP 362 imposed a 96-hour limit. The United Kingdom’s longer national policy was not authorised by ISAF and was not agreed by acquiescence.
4. International humanitarian law. The Afghan conflict was a non-international armed conflict. In the current state of the law, Common Article 3, Additional Protocol II and customary international law did not provide a power to detain in that conflict. The court declined to create such a rule by analogy from the power to use lethal force or from international armed-conflict treaties.
5. Safeguards. Even assuming a power to detain, lawful detention required humane treatment, prompt notification of reasons, periodic review by an impartial and objective authority, and an opportunity to participate in or challenge the review. Mohammed had no such opportunity, so the minimum safeguards were not met.
6. Tort and act of state. Afghan law governed the tort claim under the Private International Law (Miscellaneous Provisions) Act 1995. The detention was prima facie false imprisonment. The act-of-state defence survived the Crown Proceedings Act 1947, but was not automatic. It required compelling public-policy grounds in the particular case. None existed where the policy had no basis in Afghan law, the UNSCRs or United Kingdom legislation.

1. Court of Appeal (Civil Division) allowed the appeal concerning Mohammed on act of state, dismissed the appeals in all other respects, and varied the orders in the Rahmatullah and Iraqi civilian claims.
2. Administrative Court, on preliminary issues, gave judgments in [2014] EWHC 1369 (QB) and [2014] EWHC 3846 (QB).