JUDGMENT
Secretary of State for Foreign and Commonwealth
Affairs and another (Appellants) v Yunus
Rahmatullah (Respondent)
Secretary of State for Foreign and Commonwealth
Affairs and another (Respondents) v Yunus
Rahmatullah (Appellant)
before
Lord Phillips
Lady Hale
Lord Kerr
Lord Dyson
Lord Wilson
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
31 October 2012
Heard on 2 and 3 July 2012
Appellant Respondent
James Eadie QC Nathalie Lieven QC
Ben Watson
Dan Sarooshi
Ben Jaffey
Tristan Jones
(Instructed by Treasury
Solicitor)
(Instructed by Leigh Day
& Co)
Intervener (JUSTICE)
Thomas de la Mare QC
Fraser Campbell
(Instructed by Allen &
Overy LLP)
LORD KERR (WITH WHOM LORD DYSON AND LORD WILSON
AGREE)
1. On 20 March 2003 military operations involving armed forces of the United
States of America and the United Kingdom began in Iraq. Exactly six weeks later,
on 1 May 2003, major combat operations came formally to an end. The United
Kingdom became one of two occupying powers. The other was the United States.
2. On 16 October 2003, the United Nations Security Council adopted
Resolution 1511 (2003) which authorised, “a multinational force under unified
command to take all necessary measures to contribute to the maintenance of
security and stability in Iraq”. From that date, UK Armed Forces deployed in Iraq
formed part of that multinational force (MNF) and were responsible for security
and stabilisation operations in south eastern Iraq as part of the Multi National
Division (South East) (MND (SE)).
3. In February 2004 Yunus Rahmatullah, a citizen of Pakistan, was taken into
custody by British forces. This took place outside MND (SE) and within an area of
Iraq under US control. Mr Rahmatullah was transferred to US Forces in
accordance with the terms of a Memorandum of Understanding which had been
signed in Qatar on behalf of the armed forces of the US, UK, and Australia on 23
March 2003. That document was entitled, “An Arrangement for the Transfer of
Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of
the United States of America, the United Kingdom of Great Britain and Northern
Ireland, and Australia” and I shall refer to it as “the 2003 MoU”. It will be
necessary to discuss its terms in a little detail later in this judgment. It is sufficient
for present purposes to say that the 2003 MoU was to be implemented in
accordance with the Geneva Convention Relative to the Treatment of Prisoners of
War (GC3) and the Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (GC4), as well as customary international law. The 2003
MoU also provided that the removal of transferred prisoners of war to territories
outside Iraq would only be made “upon the mutual arrangement of the Detaining
Power and the Accepting Power”. In the case of Mr Rahmatullah, the detaining
power was the UK and the accepting power the US.
4. The UK authorities became aware, about a month after Mr Rahmatullah had
been taken into custody, that US forces intended to transfer him out of Iraq. That
transfer took place without the UK having been informed of it. By June 2004,
however, UK officials knew that Mr Rahmatullah was no longer in Iraq. He had
been taken to Afghanistan. At the time this information came to British officials,
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Mr Rahmatullah was being held in a detention facility in Bagram Air Field and
there he has remained.
5. On 5 June 2010, the US military held a Detainee Review Board hearing at
Bagram in relation to Mr Rahmatullah’s detention. The Board concluded that his
continued detention was “not necessary to mitigate the threat he poses”; that he
should be transferred to Pakistan for release; and that he was not an “Enduring
Security Threat”. On 15 June 2010 the recommendation of the Board was
approved by Brigadier General Mark S Martins of the US army but it has not been
implemented. It has been explained that the recommendation is but one component
of the transfer process. Before third-country nationals are transferred from US
custody a determination is made (based on evidence which was before the Board
but not necessarily exclusively so) whether any threat posed by the detainee can be
adequately mitigated by the receiving country. “Appropriate security assurances”
are sought. Generally, these assurances require the receiving country to take
measures to ensure that the detainee will not pose a threat to the receiving country
or to the United States.
The 2003 Memorandum of Understanding
6. The 2003 MoU was signed three days after military operations in Iraq had
begun. In a statement made for the purpose of these proceedings, Mr Damian
Parmenter, Head of Operating Policy in the Operations Directorate of the Ministry
of Defence, explained that it was considered important to obtain the 2003 MoU
because of “the known US position on the application of the Geneva
Conventions”. That position, succinctly stated, was that the conventions did not
apply to Al-Qaeda combatants. Mr Rahmatullah is believed by the US to be a
member of Lashkar-e-Taiba, a group affiliated to Al-Qaeda. To say that it was
important to obtain the 2003 MoU certainly does not overstate the position,
therefore. Section 1(1) of the Geneva Conventions Act 1957 makes it an offence
for any person to commit, or aid, abet or procure the commission by any other
person of a grave breach of any of the Geneva Conventions. Article 147 of GC4
provides that unlawful deportation or transfer or the unlawful confinement of a
protected person constitute grave breaches of that convention. It might be
considered in those circumstances to have been not only important but essential
that the UK should obtain a commitment from the US that prisoners transferred by
British forces to the US army would be treated in accordance with GC3 and GC4.
7. The importance of the need to obtain that commitment is reflected in the
terms of the very first clause of the 2003 MoU which provides:
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“This arrangement will be implemented in accordance with the
Geneva Convention Relative to the Treatment of Prisoners of War
and the Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, as well as customary international law.”
8. As Ms Lieven QC, who appeared for Mr Rahmatullah, pointed out, clause 4
of the 2003 MoU, which provides for the return of transferred prisoners, is in
unqualified terms. This was no doubt necessary because of the unambiguous
requirements of article 45 of GC4. It will be necessary to look more closely at that
article presently but, among its material provisions, is the stipulation that if the
power to whom the detainee is transferred (in this instance the US) fails to fulfil
GC4, the detaining power (here the UK) must take effective measures to correct
the situation or request the return of the transferred person. Clause 4 of the 2003
MoU therefore provides:
“4. Any prisoners of war, civilian internees, and civilian detainees
transferred by a Detaining Power [the UK] will be returned by the
Accepting Power [the US] to the Detaining Power without delay
upon request by the Detaining Power.”
9. Ms Lieven argued – and I am inclined to accept – that the unvarnished and
blunt terms of clauses 1 and 4 were designed to avoid disagreements as to the
applicability of GC3 and GC4; to eliminate disputes as to whether particular
actions of the accepting power might have breached the conventions; and to
remove from the potentially controversial and delicate area of inter-state
diplomacy debates about how prisoners should be treated.
10. Clause 5 of the memorandum deals with the situation where it is proposed
that prisoners who had been transferred would be released or removed to territories
outside Iraq. It seems likely that at least one of the reasons for including this
provision was to cater for the requirement in article 45 of GC4 that protected
persons may only be transferred to a power which is a party to the convention and
after the detaining power has satisfied itself of the willingness and ability of the
transferee power to apply GC4. Clause 5 of the 2003 MoU provides:
“5. The release or repatriation or removal to territories outside Iraq
of transferred prisoners of war, civilian internees, and civilian
detainees will only be made upon the mutual arrangement of the
Detaining Power and the Accepting Power.”
Page 4
11. It is common case that the 2003 MoU is not legally binding. It was, said Mr
Eadie QC, who appeared for the Secretaries of State, merely a “political”
arrangement. But its significance in legal terms should not be underestimated.
That significance does not depend on whether the agreement that it embodies was
legally binding as between the parties to it. As Lord Neuberger of Abbotsbury MR
said at [2012] 1 WLR 1492, para 37 of his judgment in this case, the 2003 MoU
was needed by the UK in order to meet its legal obligations under article 12 of
GC3 and article 45 of GC4. (Such parts of these as are relevant to the present
appeal are in broadly similar terms). Put plainly, the UK needed to have in place
an agreement which it could point to as showing that it had effectively ensured that
the Geneva Conventions would be complied with in relation to those prisoners that
it had handed over to the US. The 2003 MoU was the means of meeting those
obligations. It provided the essential basis of control for the UK authorities over
prisoners who had been handed over to the US.
12. In other contexts the UK Government has deployed the fact that it has made
arrangements with foreign powers in order to persuade courts that a certain course
should be followed. Thus, in MT (Algeria) v Secretary of State for the Home
Department [2010] 2 AC 110 at para 192, Lord Hoffmann, referring to assurances
which the Algerian and Jordanian Governments had given that the persons whom
the Home Secretary proposed to deport to Algeria and Jordan would not face
torture or other ill-treatment contrary to article 3 of the European Convention on
Human Rights and Fundamental Freedoms (ECHR), said that the existence of
those assurances was a sufficient basis on which it could properly be found that the
deportee would not be subject to such treatment.
13. The assurances to which Lord Hoffmann had referred were considered by
the European Court of Human Rights (ECtHR) in Othman (Abu Qatada) v United
Kingdom (Application No 8139/09) (unreported) given 17 January 2012. At para
164, the court recorded the following submission made on behalf of the UK
Government:
“164. … the Government reiterated that the assurances contained in
the MOU had been given in good faith and approved at the highest
levels of the Jordanian Government. They were intended to reflect
international standards. There was no lack of clarity in them,
especially when the MOU was interpreted in its diplomatic and
political context. … To criticise the MOU because it was not legally
binding (as the applicant had) was to betray a lack of an appreciation
as to how MOUs worked in practice between states; they were a
well-established and much used tool of international relations …”
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14. In Ahmad and Aswat v Government of the United States of America [2007]
HRLR 157, in resisting an application for extradition to America to stand trial on
various federal charges, the appellants claimed that if they were extradited there
was a real prospect that they would be made subject to a determination by the
President that would have the effect that they be detained indefinitely and/or that
they would be put on trial before a military commission in violation of their rights
under articles 3, 5 and 6 of ECHR. By Diplomatic Notes, the government of the
US had given assurances that upon extradition they would be prosecuted before a
federal court with the full panoply of rights and protection that would be provided
to any defendant facing similar charges. It was held there was a fundamental
assumption that the requesting state was acting in good faith when giving
assurances in Diplomatic Notes. The assurances in the notes were given by a
mature democracy. The United States was a state with which the United Kingdom
had entered into five substantial treaties on extradition over a period of more than
150 years. Over this period there was no instance of any assurance having been
dishonoured.
15. Memoranda of Understanding or their equivalent, Diplomatic Notes, are
therefore a means by which courts have been invited to accept that the assurances
which they contain will be honoured. And indeed courts have responded to that
invitation by giving the assurances the weight that one would expect to be
accorded to solemn undertakings formally committed to by responsible
governments. It is therefore somewhat surprising that in the present case Mr
Parmenter asserted that it would have been futile to request the US government to
return Mr Rahmatullah. As the Master of the Rolls pointed out in para 39 of his
judgment, this bald assertion was unsupported by any factual analysis. No
evidence was proffered to sustain it.
The 2008 Memorandum of Understanding
16. On 28 June 2004, the period of occupation ended and the Iraqi Interim
Government assumed full responsibility and authority for governing Iraq. After
that date, UK forces remained in Iraq as part of the MNF at the request of the Iraqi
Government and pursuant to the terms of various UN Security Council resolutions
(UNSCRs). This change in the legal framework from an international armed
conflict to operations conducted under UNSCRs apparently prompted discussions
designed to conclude a second MoU. The discussions foundered in 2004 and again
in 2006 but eventually in mid-October 2008 a revised MoU was concluded
between the governments of the US and the UK (the 2008 MoU). It was not signed
on behalf of the UK until March 2009, however.
17. It was Mr Parmenter’s evidence that the 2008 MoU was designed to replace
and supersede the 2003 MoU. I am not disposed to accept that claim. In the first
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instance, while it may not be a matter of especial significance, the 2003 MoU was
concluded between US, UK and Australia, whereas the 2008 MoU is between US
and UK alone. Secondly, the 2008 MoU does not state that it replaces the 2003
MoU and there is nothing in its terms that make it inevitably implicit that this was
to be its effect. Moreover, even if the 2008 MoU did indeed supersede the 2003
MoU, there is no reason to conclude that it had done so for prisoners already
transferred under the earlier arrangements. I consider, therefore, that the UK
government remained entitled to have recourse to the 2003 MoU to demand Mr
Rahmatullah’s release to them. This provides a sufficient basis for the finding that
there was at least uncertainty as to whether the UK could exert control over Mr
Rahmatullah. That uncertainty was enough to justify the issue of the writ.
18. Quite independently of the 2003 MoU, the UK remained under a continuing
obligation, by virtue of GC4, to take such steps as were available to it to ensure
that Mr Rahmatullah was treated in accordance with the conventions’ requirements
and, if necessary, to demand his return. It is not necessary to decide whether this
circumstance would be sufficient to give rise to uncertainty as to whether the UK
could obtain control of Mr Rahmatullah. It seems to me, however, that it might
well be enough. The UK and the US were allies. If it was demonstrated that a
failure to return Mr Rahmatullah might involve the UK being in breach of its
international obligations, it is surely at least possible that its ally, the US, would
return Mr Rahmatullah, upon request, in order to avoid that eventuality.
19. The 2008 MoU did not contain a replicate of clause 4 of the 2003 MoU.
Clause 4 of the later document provides:
“4. At all times while transferred detainees are in the custody and
control of US Forces, they will treat transferred detainees in
accordance with applicable principles of international law, including
humanitarian law. The transferred detainees will only be interrogated
in accordance with US Department of Defense policies and
procedures.”
20. Ms Lieven suggests that the phrase ”applicable principles of international
law, including humanitarian law” must comprehend the Geneva Conventions and
Mr Eadie has not sought to challenge that claim but, for the reasons that I have
given, this debate is of no more than academic interest in this appeal.
21. Clause 8 of the 2008 MoU, dealing with onward transfer of detainees, was
also different from its counterpart, clause 5, in the 2003 MoU. Whereas the earlier
MoU had stated that transferred detainees would not be removed from Iraq unless
Page 7
“mutual arrangements” were made between the detaining power and the accepting
power, clause 8 of the 2008 MoU provides:
“8. US Forces will not remove transferred detainees from Iraq
without prior consultation with the UK Government.”
The legality of the respondent’s detention
22. Before the Court of Appeal and, initially at least, before this court, the
Secretaries of State took their stand on the proposition that they did not have a
sufficient measure of control over Mr Rahmatullah’s detention. On that account,
they argued, it was not for them to address the question of whether the respondent
is legally detained.
23. There is a certain logic in the Secretaries of State’s position. If they are
right in their claim that they cannot influence, much less dictate, a decision as to
whether Mr Rahmatullah should be released, the legal justification for his
continuing to be held is not a matter for them. On the other hand, if it could be
shown that the respondent is legally detained, the relevance of the question
whether the appellants have a sufficient measure of control over Mr Rahmatullah’s
detention falls away.
24. In some cases, (of which I do not believe the present appeal to be one) the
legality of the detention of an applicant for habeas corpus will occupy centre stage.
In such cases it may be better to focus first on that question and not be distracted
by a, possibly academic, discussion of whether the respondent to the application
for habeas corpus has a sufficient measure of control over the applicant’s
detention.
25. In other cases the issue of legality may not feature as prominently and the
question whether the proposed respondent to the writ has the requisite control will
be the principal issue. It is not strictly necessary to decide whether this is a case in
which the primary focus should be on the legality of detention or on control,
although I am of the view that control is really the critical issue here. But in
deference to the arguments made on the question of the legality of Mr
Rahmatullah’s detention, it is right that I should address that issue.
26. Understandably, it did not exercise the Court of Appeal to any significant
extent. As the Master of the Rolls pointed out in para 25 of his judgment, Ms
Lieven claimed that the first element of her argument (that Mr Rahmatullah was
unlawfully detained) succeeded by default since it was “a fundamental principle of
Page 8
English law that, where an individual is detained against his will, it is for the
detainer to show that the detention is lawful, not for the detainee to show that his
detention is unlawful”. The Secretaries of State did not challenge that principle nor
Mr Rahmatullah’s right to rely on it. And they did not seek to argue that the
respondent was lawfully detained. Consistent with their stance on the question of
control, they said that this was not a matter for them.
27. Before this court, however, in response to a question from the President,
Lord Phillips, Ms Lieven was disposed to accept that the respondent had to raise a
prima facie case that he was unlawfully detained, or, as it was sometimes put, a
case of “putative illegal detention”. That case, Ms Lieven contended, rested on the
clear violations of articles 45 and 49 of GC4 constituted by Mr Rahmatullah’s
continued detention. Mr Eadie remained somewhat reserved on the issue. He
suggested that the question of whether Mr Rahmatullah fell within the protection
of the Geneva Conventions was, at least, problematic. It was not a given that
because no justification for his detention had been proffered, Mr Rahmatullah was
to be regarded, for habeas corpus purposes, as unlawfully detained.
The Geneva Conventions
28. Mr Eadie argued that Mr Rahmatullah did not come within the protection
of GC3 since he was not a prisoner of war as defined in article 4 of that
convention. It is not, I think, necessary to consider this provision in detail. I accept
that it is at least arguable that Mr Rahmatullah would not fall within it. In light of
my conclusions as to the applicability of GC4 to his situation, however, discussion
of the possible application of GC3 to his situation is not required.
29. Article 4 of GC4 provides:
“Persons protected by the Convention are those who, at a given
moment and in any manner whatsoever, find themselves, in case of a
conflict or occupation, in the hands of a Party to the conflict or
Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not
protected by it. Nationals of a neutral State who find themselves in
the territory of a belligerent State, and nationals of a co-belligerent
State, shall not be regarded as protected persons while the State of
which they are nationals has normal diplomatic representation in the
State in whose hands they are …”
Page 9
30. Pakistan is bound by the Convention and Mr Rahmatullah is therefore not
excluded by the first sentence of the second paragraph of this provision. As to
whether the second exclusionary condition (that he was a national of a neutral state
who found himself in the territory of a belligerent state) should apply to him, Ms
Lieven drew our attention to two documents which discuss this question. The first
of these was a “memorandum opinion for the counsel to the President” of the US,
prepared by Jack L Goldsmith III, assistant attorney general. In this paper, in a
section entitled “Nationals of a Neutral State in the Territory of a Belligerent
State” Mr Goldsmith said this:
“Article 4(2) (sic) also excludes from ‘protected person’ status
nationals ‘of a neutral state who find themselves in the territory of a
belligerent state’ as long as the neutral state has ‘normal diplomatic
representation in the state in whose hands they are.’ The phrase
‘territory of a belligerent state’ might appear at first to be capable of
bearing two different readings. First, it might refer to the territory of
any state that participates in an armed conflict covered by GC. As
applied to the armed conflict with Iraq, this interpretation would
mean that citizens of neutral states in occupied Iraq would not be
‘protected persons’ so long as the neutral states had ‘normal
diplomatic representation’ in the United States. Second, ‘the territory
of a belligerent state’ might refer to the home territory of the party to
the conflict in whose hands the citizen of the neutral state finds
himself. As applied to the armed conflict with Iraq, this
interpretation would deny ‘protected person’ status to citizens of
neutral states who find themselves in the territory of the United
States, but not to those who find themselves in occupied Iraq.
We conclude that the second interpretation is correct. The phrase
‘[n]ationals of a neutral state who find themselves in the territory of
a belligerent state’ must be understood in light of the Convention’s
overarching structure …”
31. The second document to which we were referred was the Joint Service
Manual of the Law of Armed Conflict issued by the Director-General Joint
Doctrine and Concepts of the Ministry of Defence. In para 11.1 of his document
the following appears:
“Neutral nationals in occupied territory are entitled to treatment as
protected persons under Geneva Convention IV whether or not there
are normal diplomatic relations between the neutral state concerned
and the occupying power.”
Page 10
32. The interpretation placed on article 4 by Mr Goldsmith is unquestionably
correct. To adopt the first interpretation mooted would run entirely counter to the
purpose of the convention and, not at all incidentally, defy common sense. Why
should nationals of a neutral state who happen to be in a country where conflict is
taking place be denied protection under the convention simply because their
country enjoys normal diplomatic relations with the state into whose hands they
fall? That would arbitrarily – and for no comprehensible reason – remove from the
protection of the convention an entire swathe of persons who would be entirely
deserving of and who naturally ought to be entitled to that protection.
33. Mr Eadie pointed out, however, that the same opinion from Mr Goldsmith
expressed the unequivocal view that Al-Qaeda operatives found in occupied Iraq
are excluded from “protected person” status. That opinion seems to have been
based on a narrow interpretation of the qualifying phrase “find themselves” as
applied to those who come to be in Iraq at the material time. The presence of such
as Mr Rahmatullah in Iraq could not, Mr Goldsmith suggests, be attributed to
happenstance or coincidence. He was therefore not a protected person under the
convention.
34. It is not necessary to deal with this argument, although, if it were, I would
have little hesitation in dismissing it. To make happenstance or coincidence a
prerequisite of protection seems to me to introduce a wholly artificial and
unwarranted restriction on its availability under the convention. But, in any event,
the position of the UK government, as evidenced by the Joint Service Manual, is
plainly at odds with the stance taken by the US as to the application of GC4 to
members of Al-Qaeda. This is confirmed by a statement in a report by Intelligence
and Security Committee on The Handling of Detainees by UK Intelligence
Personnel in Afghanistan, Guantanamo Bay and Iraq: (2005) Cm 6469. At para 8
of that report it is stated that, “the UK regards all personnel captured in
Afghanistan as protected by the Geneva Conventions”. Against this background it
is simply not open to the Secretaries of State to suggest that the convention does
not apply on the basis that Mr Goldsmith has advanced.
35. Given that GC4 does apply to Mr Rahmatullah, how does that bear on the
legality of his detention? Article 49 forbids the forcible transfer of protected
persons from the occupied territory, in this case Iraq. It provides:
“Individual or mass forcible transfers, as well as deportations of
protected persons from occupied territory to the territory of the
Occupying Power or to that of any other country, occupied or not,
are prohibited, regardless of their motive.”
Page 11
36. The, presumably forcible, transfer of Mr Rahmatullah from Iraq to
Afghanistan is, at least prima facie, a breach of article 49. On that account alone,
his continued detention post-transfer is unlawful. Quite apart from this, however,
article 132 requires that every interned person must be released by the detaining
power as soon as the reasons which necessitated his internment no longer exist.
The conclusion of the Detainee Review Board that Mr Rahmatullah’s continued
detention was “not necessary to mitigate the threat he poses” strongly suggests that
the reasons that necessitated his internment no longer apply. And article 133
stipulates that internment should cease as soon as possible after the close of
hostilities. There may be some scope for debate as to when hostilities closed but it
is at the very least eminently arguable that they ended long ago.
37. It is at this point that article 45 of GC4 comes directly into play. In so far as
is material to the present case, it provides:
“Protected persons may be transferred by the Detaining Power only
to a Power which is a party to the present Convention and after the
Detaining Power has satisfied itself of the willingness and ability of
such transferee Power to apply the present Convention. If protected
persons are transferred under such circumstances, responsibility for
the application of the present Convention rests on the Power
accepting them, while they are in its custody. Nevertheless, if that
Power fails to carry out the provisions of the present Convention in
any important respect, the Power by which the protected persons
were transferred shall, upon being so notified by the Protecting
Power, take effective measures to correct the situation or shall
request the return of the protected persons. Such request must be
complied with.”
38. In these circumstances the UK government was under a clear obligation, on
becoming aware of any failure on the part of the US to comply with any provisions
of GC4, to correct the situation or to request the return of Mr Rahmatullah. On 9
September 2004, the then Minister for the Armed Forces, Mr Adam Ingram MP,
gave a written answer to a parliamentary question in which he stated that “all
persons apprehended by the United Kingdom Forces in Iraq and transferred to
United States forces, and who are still in custody, remain in Iraq”. That was
plainly incorrect. In February 2009 Mr John Hutton MP, then Secretary of State
for Defence, made a statement to Parliament in which he said:
“[I]n February 2004 … two individuals were captured by UK forces
in and around Baghdad. They were transferred to US detention, in
accordance with normal practice, and subsequently moved to a US
detention facility in Afghanistan. … Following consultations with
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US authorities, we confirmed that they transferred the two
individuals from Iraq to Afghanistan in 2004 and they remain in
custody there today. I regret that it is now clear that inaccurate
information on this particular issue has been given to the House by
my Department … The individuals transferred to Afghanistan are
members of Lashkar-e-Taiba, a proscribed organisation with links to
al-Qaeda. The US Government have explained to us that those
individuals were moved to Afghanistan because of a lack of relevant
linguists to interrogate them effectively in Iraq. The US has
categorised them as unlawful enemy combatants, and continues to
review their status on a regular basis. We have been assured that the
detainees are held in a humane, safe and secure environment that
meets international standards that are consistent with cultural and
religious norms. The International Committee of the Red Cross has
had regular access to the detainees. … [The] review has established
that officials were aware of the transfer in early 2004. … In
retrospect, it is clear to me that the transfer to Afghanistan of these
two individuals should have been questioned at the time.” (See
Hansard (HC Debates) 26 February 2009, cols 395-396.)
39. Not only should the transfer of the two persons have been questioned at the
time that they were removed, it should have been the subject of representation by
the UK at the time that the authorities here became aware of it and subsequently.
If the UK government appreciated that the transfer was in apparent breach of
article 49 of GC4 (and it has not been suggested otherwise) and if, as it should
have done, it became aware that Mr Rahmatullah continued to be held in breach of
articles 132 and 133, it was obliged by virtue of article 45 to take effective
measures to correct the breaches or to ask for Mr Rahmatullah’s return.
40. There can be no plausible argument, therefore, against the proposition that
there is clear prima facie evidence that Mr Rahmatullah is unlawfully detained and
that the UK government was under an obligation to seek his return unless it could
bring about effective measures to correct the breaches of GC4 that his continued
detention constituted. It is for that reason that I am of the view that the real issue
in this case is that of control. But before examining that issue, it is necessary to
say something about the nature of habeas corpus.
Habeas Corpus
41. The most important thing to be said about habeas corpus, at least in the
context of this case, is that entitlement to the issue of the writ comes as a matter of
right. “The writ of habeas corpus issues as of right” per Lord Scarman in R v
Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74 at 111.
Page 13
It is not a discretionary remedy. Thus, if detention cannot be legally justified,
entitlement to release cannot be denied by public policy considerations, however
important they may appear to be. If your detention cannot be shown to be lawful,
you are entitled, without more, to have that unlawful detention brought to an end
by obtaining a writ of habeas corpus. And a feature of entitlement to the writ is the
right to require the person who detains you to give an account of the basis on
which he says your detention is legally justified.
42. The remedy of habeas corpus is said to be imperative, even peremptory.
Classically, it is swiftly obtained: see Lord Birkenhead in Ex p O’Brien [1923] AC
603 at 609. This reflects the fundamental importance of the right to liberty. And,
of course, conventionally the respondent to the writ will be the individual or
agency who has actual physical custody of the person seeking release. But habeas
corpus is – as it needs to be – a flexible remedy. As Taylor LJ said in R v Secretary
of State for the Home Department, Ex p Muboyayi [1992] QB 244, at 269, “The
great writ of habeas corpus has over the centuries been a flexible remedy adaptable
to changing circumstances.”
43. The effectiveness of the remedy would be substantially reduced if it was not
available to require someone who had the means of securing the release of a
person unlawfully detained to do so, simply because he did not have physical
custody of the detainee – “actual physical custody is obviously not essential” per
Atkin LJ in Ex p O’Brien [1923] 2 KB 361, 398 and Vaughan Williams LJ in R v
Earl of Crewe, Ex p Sekgome [1910] 2 KB 576, 592, stating that the writ “may be
addressed to any person who has such control over the imprisonment that he could
order the release of the prisoner”.
44. The object of the writ is not to punish previous illegality and it will only
issue to deal with release from current unlawful detention – see Scrutton LJ in Ex p
O’Brien [1923] 2 KB 361, 391. And the writ should only be issued where it can
be regarded as “proper and efficient” to do so, per Lord Evershed MR in Ex p
Mwenya [1960] 1 QB 241, 303. Obviously, it will not be proper and efficient to
issue the writ if the respondent to it does not have custody of the person detained
or the means of procuring his release. And it is to this element of habeas corpus,
what Mr Eadie describes as its core component, that I must now turn.
Control
45. At the heart of the cases on control in habeas corpus proceedings lies the
notion that the person to whom the writ is directed has either actual control of the
custody of the applicant or at least the reasonable prospect of being able to exert
control over his custody or to secure his production to the court. Thus in Barnardo
Page 14
v Ford [1892] AC 326 where the respondent to the writ had consistently claimed to
have handed the child, who was the subject of the application, over to someone
whom he was no longer able to contact, the courts nevertheless ordered that the
writ should issue because they entertained a doubt as to whether he had indeed
relinquished custody of the child. There was therefore a reasonable prospect that
the respondent, despite his claims, either had or could obtain custody of the child.
46. And in R v Secretary of State for Home Affairs, Ex p O’Brien [1923] 2 KB
361, Bankes LJ, although he accepted the affidavit evidence of the Home Secretary
to the effect that Mr O’Brien was under the control of the governor of Mountjoy
prison and that the governor was an official of the Irish Free State not subject to
the orders or directions of the Home Secretary or the British government,
nevertheless decided that the writ of habeas corpus should issue. This was because
the arrangements which existed between the Irish Free State and the United
Kingdom provided grounds for believing that the Home Secretary could obtain the
return of Mr O’Brien. Mr O’Brien had been arrested in London under regulation
14B of the Restoration of Order in Ireland Regulations 1920 and deported to
Ireland there to be interned until further order. A statement had been made in the
House of Commons on 19 March 1923 that the Irish Free State had given the
British government a number of undertakings, one of which was to the effect that
if it was decided that any person should not have been deported he would be
released. On this basis, the Court of Appeal in effect held that there was a
reasonable prospect that the Home Secretary could exert sufficient control over the
custody of Mr O’Brien to justify the issue of the writ. Scrutton and Atkin LJJ
agreed with Bankes LJ, Atkin LJ observing that the question was whether control
“exists in fact”. The circumstance that Mr O’Brien was under the control of the
governor of the prison was “by no means inconsistent with an agreement with the
Free State Government to return on request”. Although he acknowledged that there
was doubt as to whether the Home Secretary could exert control, Atkin LJ held
that there was material before the court which suggested that he could, and, on that
account, habeas corpus should be granted. (Of course, the Court of Appeal’s
apprehension that the Home Secretary did have sufficient control to secure the
production of Mr O’Brien proved to be entirely correct for he was brought to the
court on 16 May 1923 and was “thereupon discharged”.)
47. On appeal to the House of Lords, (Secretary of State for Home Affairs v
O’Brien [1923] AC 603), the Home Secretary’s appeal was dismissed on
jurisdictional grounds. Lord Atkinson dissented on that issue but he clearly
approved the Court of Appeal’s analysis for, in a passage at p 624, which has
resonances for the present appeal, he said this:
“[The writ of habeas corpus] operates with coercive force upon the
Home Secretary to compel him to produce in Court the body of the
respondent. If the Executive of the Free State adhere to the
Page 15
arrangement made with him he can with its aid discharge the
obligation thus placed upon him. If the Irish Executive should fail to
help him he would be placed in a very serious position. Unless this
Executive breaks what has been styled its bargain with the Home
Secretary he had, in effect, the respondent under his power and
control. It would be rather unfair to this Executive to assume
gratuitously beforehand that it would not keep the bargain made with
it, simply because that bargain was not enforceable at law.”
48. The circumstance that the agreement between the British and Irish Free
State Governments that internees would be returned was not legally enforceable
did not detract, therefore, from the conclusion that there was at least a reasonable
prospect that the Home Secretary could procure Mr O’Brien’s return to England.
This highlights the factual nature of the inquiry that must be made as to whether a
sufficient degree of control exists. It is not simply a question of the legal
enforceability of any right to assert control over the individual detained. The
question is, as Atkin LJ put it, whether control “exists in fact”.
49. In Zabrovsky v General Officer Commanding Palestine [1947] AC 246 Mr
Zabrovsky’s son, Arie Ben Eliezer, a Palestinian citizen, was detained under
emergency powers regulations. He was issued with an order requiring him to leave
Palestine. He was then transported to a military detention camp in Eritrea. At the
time, Eritrea was “held” by the British under the control of a Chief Administrator.
Proclamation No 54 issued by the Chief Administrator permitted detention without
charge in Eritrea, and the order of the Eritrean Military Government for Eliezer’s
detention had been made pursuant to that Proclamation.
50. An application for habeas corpus was made in the Supreme Court of
Palestine against the British Officer commanding Mandate Palestine and the
police. That court, sitting as a High Court and exercising English common law
rules, discharged a rule nisi on the basis that, although control could be
established, the extant detention order had been issued by a state beyond the
Supreme Court of Palestine’s jurisdiction. On appeal from the decision refusing
that application, the Privy Council held at pp 255-256 that the order for the
banishment of Mr Zabrovsky’s son was lawful, stating:
“In the troublous times of war and in the chaotic post-war conditions
the scope of legal and permissive interference with personal liberty
has been extended and restraints have been legalised by the
legislature which would not have been accepted as legitimate in
normal times. Thus in England, in what are called the Reg 18B
cases, Liversidge v Sir John Anderson … the House of Lords upheld
the legality of a detention of the applicants by the Executive without
Page 16
trial and also held that the Executive could not be compelled to give
reasons for the detention… … the effect of the decisions is to vest a
plenary discretion in the Executive, affecting the liberty of the
subject and pro tanto to substitute the judgment of the court, based
on ordinary principles of common law right, the discretion of the
Executive acting arbitrarily in the sense that it cannot in substance be
inquired into by the court.”
51. The Board distinguished O’Brien in the following passage of its opinion at
pp 262-263:
“[O’Brien] was relied upon for two purposes (1) to support an
argument that on the facts of the present case the Palestine
Government could properly be ordered to produce the body, and (2),
that the proper order was not to discharge the order nisi but to make
an order nisi which would enable the court, without deciding the
question whether the Palestine Government had control of Eliezer, to
clear up any doubts there might be as to the facts. In their Lordships’
view, however, O’Brien’s case does not, when carefully considered,
afford any help in this appeal. The central feature in that case was
that there never was an effective legal order. The order relied on was
made by the English Secretary of State for internment of O’Brien in
the Irish Free State after the setting up of an Irish constitution and an
Irish Executive. The Court of Appeal held that the order was illegal.
… The Secretary of State thereupon produced the body of O’Brien,
giving as their justification, the order of internment which the court
had held to be bad; the court made the order absolute and O’Brien
was released … In the present case the Palestinian court has found
itself unable to say that the detention was illegal. They have said that
it was beyond their competence to decide on the illegality of the
detention in Eritrea. Their Lordships, as they have indicated, agree
with this view but offer no opinion as to the further suggestion of
that court, that, if the petitioner wishes to question the validity of the
order made in Eritrea, he must do so in the courts of Eritrea. The
validity and effect of the Eritrean law and order may raise many
difficult questions of constitutional or other law. The legality of acts
done, or of detention enforced in, that country in pursuance or
assumed pursuance of its law or orders is, however, clearly beyond
the jurisdiction of the Palestine court and of this Board on appeal.”
52. With respect, the suggestion that the central feature of O’Brien was that
there was no effective legal order is open to serious question. A critical, if not the
central, issue in that case, as I have sought to demonstrate above, is that there was
reason to conclude that the Home Secretary had control over Mr O’Brien’s release.
Page 17
Habeas corpus was issued in his case not simply because it was held that he had
been deported and interned on foot of an order which, it was found, had not been
lawfully made. The issue of the writ depended crucially on the finding that it was
likely that the Home Secretary could procure Mr O’Brien’s release.
53. In any event, (and in contrast with the position in Zabrovsky) there is clear
prima facie evidence in the present case that Mr Rahmatullah is unlawfully
detained. That conclusion depends on the effect of the Geneva Conventions, not
on an examination of the legal basis on which the US might claim to justify his
detention. This court is not precluded, therefore, from expressing a view as to the
apparent lack of legal justification for Mr Rahmatullah’s continued detention,
unlike the position in Zabrovsky where the Board felt constrained not to examine
the legal basis for Mr Eliezer’s internment in Eritrea. This court is not asked to
“sit in judgment on the acts of the government of another done within its own
territory” as in Underhill v Hernandez (1897) 168 US 250, 252. The illegality in
this case centres on the UK’s obligations under the Geneva Conventions. It does
not require the court to examine whether the US is in breach of its international
obligations, as in R (Al-Haq) v Secretary of State for Foreign and Commonwealth
Affairs [2009] EWHC 1910 (Admin), which was relied on by Mr Eadie in support
of his argument that the Act of State doctrine forbade examination of the legality
of Mr Rahmatullah’s detention because he was held by the US authorities. Here,
there was evidence available to the UK that Mr Rahmatullah’s detention was in
apparent violation of GC4. The illegality rests not on whether the US was in
breach of GC4 but on the proposition that, conscious of those apparent violations,
the UK was bound to take the steps required by article 45 of GC4.
54. A further point of distinction with the decision in Zabrovsky is that at p 259
the Board made an unequivocal finding of fact that “neither respondent had the
deportee in his custody or control nor had either of them any power to produce the
body”. This is to be contrasted with the present case where the Court of Appeal has
unequivocally found that there was sufficient reason to conclude that the
Secretaries of State would be able to assert control over the custody of Mr
Rahmatullah. I am therefore of the view that the decision in Zabrovsky has no
bearing on the appeal before this court.
55. In Ex p Mwenya [1960] 1 QB 241, the Divisional Court (Parker LCJ, Slade
and Winn JJ) considered an application brought on behalf of Mr Mwenya, who had
been required by the Governor of Northern Rhodesia to remain within the
Mporokoso District of Northern Rhodesia. Three respondents were named in the
application: the Governor of Northern Rhodesia, the District Commissioner of the
Mporokoso District, and the Secretary of State for the Colonies. In an affidavit
filed in the proceedings the Secretary of State explained that the Northern
Rhodesian Protectorate was a foreign territory under Her Majesty’s protection. He
averred that he had neither custody of Mr Mwenya nor control over his custody.
Page 18
56. The Divisional Court was asked to consider two preliminary objections, one
of which was that sufficient custody or control on the part of the Secretary of State
could not be established. Delivering the judgment of the court, Lord Parker CJ
said at p 279:
“Reliance was further placed by the applicant on Barnardo v Ford
and Rex v Secretary of State for Horne Affairs, Ex p O’Brien. Both
those cases are authority for the proposition that the writ will issue
not only to the actual gaoler but to a person who has power or
control over the body. Further, in O’Brien’s case the writ was issued
to the Secretary of State for Home Affairs, who had in fact handed
the physical custody of the body over to the Government of the Irish
Free State. It is clear, however, from the facts of that case, that the
Secretary of State had not only been responsible for the original
detention but that there were strong grounds for thinking that in
handing over the body to the Government of the Irish Free State he
had not lost all control over it. In those circumstances the court
decided to issue the writ in order that the full facts could be
investigated and argument heard on the return.
The position here is quite different. The restriction orders under
which the applicant is detained were not made by the Secretary of
State. His approval or consent was not required and there is no
evidence that he took any part in the detention. No doubt the writ
will issue not only to a person who has the actual custody but also to
a person who has the constructive custody in the sense of having
power and control over the body. Here, however, we can find no
custody by the Secretary of State in any form.”
57. The Divisional Court’s ruling on the issue was not appealed but the clear
distinction between Mwenya and O’Brien emerges unmistakably from this
passage. Whereas in O’Brien there were “strong grounds” for believing that the
Home Secretary had not lost control over Mr O’Brien’s detention, in Mwenya no
such grounds existed.
58. It had been argued in Mwenya that the Secretary of State had powers
deriving from the constitution of Northern Rhodesia to which he might have resort
in order to secure Mr Mwenya’s release and that he was able to advise the Queen
to require it. Of this argument the Lord Chief Justice said, at pp 279-280:
“We were referred to a number of provisions in the constitution of,
and in other legislation in regard to, Northern Rhodesia under which
Page 19
the Secretary of State is specifically given certain powers, and
powers which extend beyond advice. But we find it impossible to
say that as a result of those powers he can be said to have the
custody of the body in any sense. Apart from the powers given by
such legislation the only powers of the Secretary of State arise by
reason of his constitutional position under which he advises Her
Majesty. The fact, however, that he can advise and attempt to
persuade Her Majesty to cause the body to be brought up does not
mean that he has such a control as will enable the writ to issue. Nor
is it in our view relevant that if the writ were issued the Secretary of
State might well feel it proper to influence the production of the
body.”
59. Mr Eadie argued that these observations illustrated the impropriety of courts
giving directions to ministers as to how they should conduct affairs of state. It was
inappropriate, he said, for the Secretaries of State in the present case to be, in
effect, instructed to ask the US authorities to return Mr Rahmatullah. Whether the
UK government would have resort to the political agreement of the 2003 MoU was
a matter for political judgment and the exercise of that judgment was not a matter
for the courts. The writ in this case had a singular effect, Mr Eadie claimed, of
requiring the Secretaries of State to engage at a diplomatic level with the custodian
state, the US.
60. I do not accept this argument. In the first place, the Court of Appeal’s
decision does not amount to an “instruction” to the Government to demand Mr
Rahmatullah’s return. Its judgment merely reflects the court’s conclusion that there
were sufficient grounds for believing that the UK Government had the means of
obtaining control over the custody of Mr Rahmatullah. On that basis the court
required the Secretaries of State to make a return to the writ. The essential
underpinning of the court’s conclusion was that there was sufficient reason to
believe that the Government could obtain control of Mr Rahmatullah. It might well
prove that the only means of establishing whether in fact it could obtain control
was for the Government to ask for his return but that remained a matter for the
ministers concerned. The Court of Appeal’s judgment did not require the
Secretaries of State to act in any particular way in order to demonstrate whether
they could or could not exert control. What it required of them was that they show,
by whatever efficacious means they could, whether or not control existed in fact.
61. Another case on control to which we were referred by Mr Eadie is In re
Sankoh (unreported) 27 September 2000, in which the Court of Appeal (Ward,
Waller, Laws LJJ) considered an appeal against the High Court’s earlier refusal
(Elias J) to issue the writ on behalf of the Sierra Leonean revolutionary leader,
Foday Sankoh, who had been detained in Sierra Leone while UK forces were
Page 20
supporting the national government there, and in circumstances where they had
been involved in his transfer between detention centres. The applicant relied on
O’Brien and argued that a statement by Mr Peter Hain MP, a minister in the
Foreign Office, which was made in response to a demand that Sankoh be released
in return for certain hostages, demonstrated sufficiently arguable on-going control
for the writ to run. Mr Hain had said that the UK government would not negotiate
with hostage takers and that it would not trade Mr Sankoh’s freedom. On the basis
of that statement, it was argued that the British government was in a position to
trade Mr Sankoh for the hostages. This assertion was directly confronted by the
evidence of the Foreign and Commonwealth Office that Mr Sankoh was not under
the custody or control of the British government and that there was no agreement
between the UK and Sierra Leone under which the British government could
require the release or “delivery up” of Mr Sankoh.
62. In light of that evidence it is perhaps not surprising that Laws LJ expressed
himself in forthright terms that the appellant had not established that the Secretary
of State had control over Mr Sankoh’s detention: see para 12 of the judgment. But
Mr Eadie relied on the decision more for Laws LJ’s observations at para 9 where
he said:
“It seems to me, moreover, looking at the matter more broadly, that
unless Mr Sankoh is actually in the custody of the United Kingdom
authorities, the applicant’s case must be that the British Government
should be required by this court to attempt to persuade Sierra Leone
either to identify his whereabouts or to deliver him up. But that
involves the proposition that the court should dictate to the executive
government steps that it should take in the course of executing
Government foreign policy: a hopeless proposition.”
63. For the reasons that I have given at para 60 above, I do not consider that the
effect of the Court of Appeal’s decision in the present case is to require the British
Government to engage in a process of persuasion. It does not involve an attempt
to “dictate to the executive government steps that it should take in the course of
executing Government foreign policy”. Rather it requires the Government to test
whether it has the control that it appeared to have over the custody of Mr
Rahmatullah and to demonstrate in the return that it makes to the writ that, if it be
the case, it does not have the control which would allow it to produce the body of
Mr Ramatullah to the court.
64. An applicant for the writ of habeas corpus must therefore demonstrate that
the respondent is in actual physical control of the body of the person who is the
subject of the writ or that there are reasonable grounds on which it may be
concluded that the respondent will be able to assert that control. In this case there
Page 21
was ample reason to believe that the UK government’s request that Mr
Rahmatullah be returned to UK authorities would be granted. Not only had the
2003 MoU committed the US armed forces to do that, the government of the US
must have been aware of the UK government’s view that Mr Rahmatullah was
entitled to the protection of GC4 and that, on that account, it was bound to seek his
return if (as it was bound to do) it considered that his continued detention was in
violation of that Convention.
Foreign affairs
65. The Executive’s conduct of foreign affairs has been described as
“forbidden territory” for the courts. In R v Secretary of State for Foreign and
Commonwealth Affairs, Ex p Pirbhai (1985) 107 ILR 462, Sir John Donaldson
MR at 479 said that “it can rarely, if ever, be for judges to intervene where
diplomats fear to tread”. Ringing, declamatory statements to like effect are to be
found in a number of other authorities. For instance, in R v Secretary of State for
Foreign and Commonwealth Affairs, Ex p Ferhut Butt (1999) 116 ILR 607
Lightman J said, at para 12, p 615:
“The general rule is well established that the courts should not
interfere in the conduct of foreign relations by the Executive, most
particularly, where such interference is likely to have foreign policy
repercussions (see R v Secretary of State for Foreign and
Commonwealth Affairs, Ex p Everett [1989] 1 QB 811 at 820). This
extends to decisions whether or not to seek to persuade a foreign
government to take any action or remind a foreign government of
any international obligation (eg to respect human rights) which it has
assumed.”
66. In R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs
and the Secretary of State for the Home Department [2002] EWCA Civ 1598;
[2003] UKHRR 76, dealing with a submission that decisions taken by the
executive in its dealings with foreign states are not justiciable, Lord Phillips MR
said at para 106 (iii) “… the court cannot enter the forbidden areas, including
decisions affecting foreign policy.” And in R (Al Rawi) v Secretary of State for
Foreign and Commonwealth Affairs (United Nations Comr for Refugees
intervening) [2008] QB 289 Laws LJ, at para 148, said:
“This case has involved issues touching both the Government’s
conduct of foreign relations, and national security: pre-eminently the
former. In those areas the common law assigns the duty of decision
upon the merits to the elected arm of government; all the more so if
Page 22
they combine in the same case. This is the law for constitutional as well
as pragmatic reasons …”
67. Mr Eadie submitted that the issue of the writ of habeas corpus in this case
represented an intrusion by the courts in the area of foreign policy, an area which
the courts should scrupulously avoid. If, he asked rhetorically, the courts are
prepared to require the Government to ask the US to release Mr Rahmatullah, why
should they refrain from doing so even if there is no MoU in place.
68. This argument founders on the rock identified in para 60 above. The
decision of the Court of Appeal that there were grounds on which it could be
concluded that the Secretaries of State could exercise control over Mr
Rahmatullah’s custody and that they were therefore required to make a return to
the writ does not entail an intrusion into the area of foreign policy. It does not
require of the government that it take a particular foreign policy stance. It merely
seeks an account as to whether it has in fact control or an evidence- based
explanation as to why it does not.
69. In Abbasi the first claimant, a British national, was captured by US forces
and transported to Guantanamo Bay in Cuba. The principal issues in the case were
stated by Lord Phillips in para 2 of the court’s judgment to be: (i) to what extent, if
at all, can the English court examine whether a foreign state is in breach of treaty
obligations or public international law where fundamental human rights are
engaged? and (ii) to what extent, if at all, is a decision of the executive in the field
of foreign relations justiciable in the English court?
70. Neither issue arises on the present appeal. For the reasons that I have given
at paras 38-40 and 53, the legality of the US’s detention of Mr Rahmatullah is not
under scrutiny here. It is the lawfulness of the UK’s inaction in seeking his return
that is in issue. And the requirement to make a return to the writ of habeas corpus
does not demand of the Government that it justify in political terms a decision not
to resort to the 2003 MoU in order to request Mr Rahmatullah’s return. What the
Court of Appeal’s judgment required of the Government was that it should
demonstrate why, as a matter of fact, it was not possible to secure that outcome.
This is to be contrasted with the duty which the appellant in Abbasi claimed was
owed to him by the Foreign Secretary, viz to exercise diplomacy on his behalf: see
para 79 of the judgment. In the present case, the Secretaries of State were not
required to make any particular diplomatic move. Because they appeared to have
the means of securing Mr Rahmatullah’s production on foot of the writ of habeas
corpus, they were required to bring that about or to give an account of why it was
not possible.
Page 23
Should entitlement to habeas corpus be coterminous with the right to judicial
review?
71. Mr Eadie contended that it would be unacceptably incongruous that a
different outcome should be possible on an application for a writ of habeas corpus
from that which would result from an application for judicial review. In R v
Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74 Lord
Wilberforce said, at p 99:
“These remedies of judicial review and habeas corpus are, of course,
historically quite distinct and procedurally are governed by different
statutory rules, but I do not think that in the present context it is
necessary to give them distinct consideration. In practice, many
applicants seek both remedies. The court considers both any
detention which may be in force and the order for removal: the one is
normally ancillary to the other. I do not think that it would be
appropriate unless unavoidable to make a distinction between the
two remedies and I propose to deal with both under a common
principle.”
72. It would be quite wrong, in my opinion, to take from this passage a
principle that habeas corpus can only be available where judicial review would
also lie. Mr Eadie’s argument was that a judicial review challenge to the failure of
the Government to seek his return from the US authorities would face two
formidable, interrelated obstacles. The first was the non-justiciability of decisions
of the executive in the field of foreign affairs. The second obstacle was that the
Government would be able to defend any claim for judicial review on the basis
that a decision not to seek Mr Rahmatullah’s production was justified because of
the need to preserve good relations with an important ally.
73. The fallacy in the suggestion that habeas corpus should not be available
where judicial review is not, lies in its conflation of two quite different bases of
claim. The mooted judicial review application would proceed as a challenge to the
propriety of the government’s decision not to apply to the US authorities for Mr
Rahmatullah’s return. The application for habeas corpus does not require the
government to justify a decision not to make that application. It calls on the
government to exercise the control which it appears to have or to explain why it is
not possible (not why it is not reasonable) to do so.
74. Apart from the differing nature of the two claims, the fact that habeas
corpus, if the conditions for its issue are satisfied, is a remedy which must be
granted as a matter of automatic entitlement distinguishes it from the remedy of
Page 24
judicial review which can be withheld on a discretionary basis. It is unsurprising
that habeas corpus is available as of right. If there is no legal justification for a
person’s detention, his right to liberty could not depend on the exercise of
discretion. To bring the matter home to the circumstances of the present case, if it
was established that Mr Rahmatullah was unlawfully detained and that the UK
authorities had the means of bringing his unlawful detention to an end, it is
inconceivable that they could lawfully decline to do so on the basis that it would
cause difficulty in the UK’s relations with the US. Such a consideration might
provide the basis for asserting, in defence of a judicial review application, that the
decision not to request the US to take a particular course of action was reasonable.
In the context of a habeas corpus application, however, the question of
reasonableness in permitting an unlawful detention to continue when the
government had the means of bringing it to an end simply does not arise.
The Court of Appeal’s conclusion on the question of control
75. The existence of the 2003 MoU and, in particular clause 4 of that document,
provided more than sufficient reason to conclude that the UK government could
expect that, if it asked for it, Mr Rahmatullah’s return by US forces would occur.
This is quite unrelated to the question of the legal enforceability of the MoU. The
Court of Appeal had to make an assessment of what was likely to happen as a
matter of factual prediction. The only countervailing argument to the claim that the
US should be expected to adhere to the commitment that it had made was Mr
Parmenter’s suggestion that to make the request would be futile. But, as I have
pointed out, this bald claim was not supported by anything beyond the suggestion
that the 2003 MoU was nothing more than a political arrangement. Just because it
was a political arrangement, should it be assumed that it would not be fulfilled by
the US? I can think of no reason that such an assumption should be made.
76. Moreover, the US authorities must have been aware that the UK considered
that GC4 applied to Mr Rahmatullah. On that basis, it ought to have anticipated
that the UK would ask for his return, whether or not the 2003 MoU had been
superseded. At the time that the Court of Appeal considered the matter, there was
no reason to suppose that the US, a close ally of the UK, would be unheeding of
such a request. I therefore consider that the Court of Appeal was justified in its
conclusion, on the evidence then available to it, that there was every reason to
believe that the US would respond positively to a request by the UK that Mr
Rahmatullah should be returned. I would therefore dismiss the Secretaries of
State’s appeal.
The cross-appeal
Page 25
77. The judgment of the Court of Appeal directing the issue of a writ of habeas
corpus was handed down on 14 December 2011. The return date was fixed initially
for 21 December 2011. The hearing due on that date was adjourned to 18 January
2012 and again to 20 February 2012 in order to allow the US authorities to make a
response to the formal letter of request dated 16 December 2011 in which the
British authorities had sought the release of Mr Rahmatullah.
78. On 8 February 2012 Mr William Lietzau, the US deputy assistant Secretary
of State for Defense responded to the letter of request for Mr Rahmatullah’s
release. The following are the material passages from the letter:
“Rahmatullah has been held by US military forces in accordance
with Public Law 107-40, the Authorization for Use of Military Force
(AUTMF), as informed by the laws of war. Consistent with the
international law of armed conflict, this authority allows our forces
to detain, for the duration of hostilities, persons who were part of, or
substantially supported, Taliban or al-Qaida forces or associated
forces that are engaged in hostilities against the United States or its
coalition partners, including any person who has committed a
belligerent act, or has directly supported hostilities, in aid of such
enemy forces. Rahmatullah, a member of an al-Qaida affiliated
terrorist group, travelled from Pakistan to Iraq for the express
purpose of engaging United States and coalition forces in hostilities.
Accordingly, he has been determined to meet the criteria for
detention by multiple Detainee Review Boards (DRB), which are
designed, inter alia, to determine whether an individual is lawfully
detained. Rahmatullah is properly detained by the United States
consistent with the international law of armed conflict.
Once a detainee has been determined by a DRB to meet the criteria
for detention, the board then makes a recommendation as to whether
continued detention is necessary to mitigate the threat the detainee
poses to US and coalition forces. Disposition recommendations for
third-country nationals can include continued internment or
repatriation to their home country for criminal prosecution, for
participation in a reintegration or reconciliation program, or for
release.
Rahmatullah has been identified by a DRB as someone who could be
transferred under appropriate circumstances. The board in this case,
based on the information available to it, made a finding that the
threat Rahmatullah posed could be mitigated if he was transferred to
Pakistan with appropriate security assurances. This recommendation
Page 26
is but one component of a transfer process. Before we transfer thirdcountry nationals from US custody at the DFIP, we independently
determine — using information the DRB relied upon as well as
relevant information not necessarily available to the Board —
whether any threat posed by the detainee can be adequately mitigated
by the receiving country. Accordingly, we seek appropriate security
assurances when we transfer a detainee who is being detained
pursuant to the AUMF, as informed by the laws of war, regardless of
whether the transfer is to be to the detainee’s home country or to a
third country. Generally, these security assurances commit the
receiving, country to take measures that are necessary, appropriate,
and lawfully available, to ensure that the detainee will not pose a
threat to the receiving country or to the United States. In addition to
security assurances, we seek humane treatment assurances in order to
ensure that, upon transfer, the detainee will be treated humanely,
consistent with applicable international law.
Normally, unless there is an obstacle to repatriation, transfer
discussions in circumstances such as these would involve the
detainee’s home country. We have already received a request from
the Government of Pakistan for Rahmatullah’s repatriation, and we
believe it may be more appropriate to discuss the conditions of
transfer directly with the Government of Pakistan.
I look forward to discussing this matter further with you.”
79. The Master of the Rolls dealt with this letter in paras 8-10 of a second
judgment in the case delivered on 23 February 2012 ([2012] EWCA Civ 182;
[2012] 1 WLR 1462, 1492):
“8. There can be no doubt but that the UK government made a bona
fide request to the US authorities for the return of the applicant,
which accorded with the terms of our judgment, and it had appended
to it a copy of that judgment.
9. I turn, then, to the response of 8 February from Mr Lietzau. As I
see it, the first problem for the applicant is that that letter makes it
very difficult to contend that the UK Government has ‘custody’ or ‘de
facto control’ of the applicant, as discussed in the cases considered at
paras 27-31 (ante, pp 1483-1484), and if that is right, the uncertainty
which gave rise to the issue of the writ has been answered, and sadly
for the applicant, adversely to him.
Page 27
10. The letter clearly maintains that the US authorities are entitled to
continue to hold the applicant, that if he is to be released to anyone,
it should be to the Pakistani Government, and the US authorities
would not release him to anyone without what they regarded as
appropriate safeguards. Whatever may be the legal right of the UK
Government and the legal obligations of the US Government, under
the MoUs discussed in our earlier judgments at paras 3-8 (ante, pp
1479-1480) or under Geneva III or Geneva IV, as discussed at paras
11-15 (ante, pp 1480-1481), it seems clear that the US authorities are
not prepared to hand over the applicant to the UK Government in
order for him to be released.”
80. Mr Rahmatullah has appealed against the decision of the Court of Appeal,
announced at the conclusion of the hearing on 20 February, that the Secretaries of
State had made a sufficient return to the writ of habeas corpus. Before this court,
Ms Lieven pointed out that Mr Lietzau’s letter conspicuously failed to say that the
British authorities were not entitled to exercise control over Mr Rahmatullah; it did
not state that the 2003 MoU was no longer applicable; it did not deal with the
Geneva Conventions; and it appeared to invite further exchanges on the question
of whether Mr Rahmatullah would be released to the British authorities. She
argued that the letter could not be seen as a rejection of the UK’s request for Mr
Rahmatullah’s release and there remained a doubt as to whether that release could
be secured. Until that doubt was satisfactorily eliminated, the return could not be
regarded as sufficient.
81. Mr Lietzau’s letter had been addressed to Mr Paul Vincent Devine, Director
of Operational Policy at the Ministry of Defence and Mr Tom Drew, Director of
International Security at the Foreign and Commonwealth Office. In a statement
filed on behalf of the Secretaries of State for the purpose of the hearing before the
Court of Appeal on 20 February, Mr Drew stated that Mr Lietzau’s letter was “a
definitive statement of the US position”. The letter was the product of “careful
consideration over a number of weeks”. His view was that the “US authorities, in
suitably diplomatic language, have effectively declined … the request that [Mr
Rahmatullah] be transferred to UK custody in order that he be released”. Mr
Devine expressed agreement with Mr Drew’s statement and adopted it on behalf of
the Secretary of State for Defence. The final paragraph of Mr Drew’s letter
outlined what was described as “the respondents’ position”:
“In light of this response from the US authorities, the Respondents
are of the view that they have now made a full and sufficient return
to the Court’s writ. They have drawn the US authorities’ attention to
the Court of Appeal’s decision and requested that the Appellant be
released pursuant to it (specifically, that the Appellant be returned to
UK custody in order that he be released). In response, the US
Page 28
authorities have effectively declined the Respondents’ request while
drawing attention to the on-going. efforts being made to transfer the
Appellant to Pakistan — subject to “appropriate security assurances”.
In those circumstances, the Respondents do not intend to engage in
further substantive correspondence on this matter with the US.”
82. The Master of the Rolls dealt with Mr Drew’s statement in para 11 of the
second judgment as follows:
“A further problem for the applicant is that, however a lawyer may
be tempted to construe the 8 February letter, there is the unequivocal
evidence of Mr Drew, supported by Mr Devine, that in the world of
international relations, the letter amounts to a refusal to hand over
the applicant. While we are not bound to accept such evidence, it
seems to me that it would be dangerous to reject it in a case such as
this where it does not appear unconvincing and there is nothing to
contradict it. The language of diplomats representing different states
discussing a problem can no doubt be very different from that of
lawyers representing different interests discussing a problem or even
the same problem, particularly when as here the problem may be one
of some sensitivity.”
83. One can see the force in the points made by Ms Lieven concerning the
shortcomings of Mr Lietzau’s letter as a means of dealing unambiguously with the
basis on which the Court of Appeal had found that there were grounds for
considering that the UK authorities had control over Mr Rahmatullah. But one can
also readily understand why Mr Lietzau would have been reluctant to issue a
forthright and peremptory refusal to accede to the request for Mr Rahmatullah’s
release. What is undeniable is that the US authorities had been provided with the
Court of Appeal’s judgment and had been afforded ample opportunity to consider
it carefully. It could not have been lost on Mr Lietzau that his letter of 8 February,
coming as it did merely weeks before the final return to the writ had to be made,
would be a crucial and closely examined document. He was fully aware of the
basis on which the Court of Appeal considered that the UK authorities could be
said to have retained control. A diplomatic silence on that question does not
necessarily indicate a lack of interest in the subject. It is at least as consistent with
a profound disagreement with the view that the UK could assert entitlement to
control but that this, in the interests of diplomacy, was better left unexpressed.
84. Whatever else may be said of his letter, Mr Lietzau was explicit in his
assertion that the US was legally entitled to hold Mr Rahmatullah. His letter gave
no indication that there would be any opportunity for discussion of that question.
And it was at least implicit that the US considered that, if Mr Rahmatullah was to
Page 29
be released from US custody, it would be to Pakistan that that release would take
place.
85. In all the circumstances, I consider that the Court of Appeal was entitled to
hold that a sufficient return to the writ was made by the Secretaries of State. I
would dismiss the cross-appeal.
LORD PHILLIPS
Introduction
86. The issue on this appeal is whether the Court of Appeal was right, reversing
the decision of the Divisional Court, to issue a writ of habeas corpus ad
subjiciendum in favour of the respondent, Mr Rahmatullah.
87. The writ of habeas corpus requires a respondent who is detaining a person
(“the prisoner”) to produce him before the court and to justify his detention. The
writ has its origin in the Middle Ages. Originally it was commonly used in
circumstances where the detention was not in doubt but the issue was whether the
detention was lawful. The writ would be issued ex parte on application by or on
behalf of the prisoner, provided that he demonstrated a prima facie case. The issue
of the legality of his detention would be determined after the prisoner had been
produced to the court.
88. By about 1780 the practice had changed. The applicant would request a rule
nisi requiring the respondent to show cause why the writ should not issue. On the
return of the rule any issue as to whether the prisoner was in fact detained by the
respondent or as to the legality of such detention would be resolved, and if the
applicant was successful an order would be made for his release.
89. In 1938 the practice changed again to what it is today. The modern practice
is set out in RSC Order 54, which appears in Schedule 1 to the CPR. The
application for a writ of habeas corpus is made without notice, and is supported by
evidence setting out the applicant’s case. If the judge is satisfied that the applicant
has made out an arguable case, notice of the application will be given to the
respondent and to other interested parties. The hearing of the application will then
normally become the substantive hearing. If the applicant succeeds, the prisoner’s
release will normally be ordered without more ado. In exceptional circumstances
the court can, however, issue the writ so that a formal return is required. This is
such an exceptional case.
Page 30
90. Habeas corpus will lie not merely against a defendant who is himself
detaining the prisoner, but against a defendant who holds the prisoner in his
custody or control through another.
91. Typically habeas corpus lies against a defendant who is detaining the
prisoner within the jurisdiction of the court. Where a defendant, who is within the
jurisdiction, has unlawfully detained the prisoner within the jurisdiction and
unlawfully taken him out of the jurisdiction, where he still holds him in his
custody or control, habeas corpus will also lie.
92. The English court issued the writ of habeas corpus in two cases where the
defendant had unlawfully removed the prisoner from the jurisdiction and where it
was uncertain whether the defendant retained sufficient control over the prisoner to
procure his release. The object of the issue of the writ was to put that question to
the test: Barnado v Ford [1892] AC 326; R v Secretary of State for Home Affairs v
Ex p O’Brien [1923] 2 KB 361. The principal issue canvassed in the present case
has been whether what I shall call “the O’Brien approach” should be adopted on
the facts of this case. Mr Rahmatullah is in the custody of the United States forces.
The effect of the issue of the writ would be to require the United Kingdom to
request the United States to release him. Should habeas corpus issue in order to
require the Secretaries of State to take that action? The Court of Appeal said “yes”.
It was uncertain whether or not the United States would accede to such a request.
The O’Brien approach should be adopted to resolve that uncertainty. The writ was
duly issued, the request was made and it did not procure the release of Mr
Rahmatullah. In these circumstances the appeal in this case is a post mortem. Its
only practical consequence is the impact that it may have on the cross-appeal,
under which Mr Rahmatullah seeks to impose on the Secretaries of State the
obligation to take further steps to persuade the United States to release him.
93. In Barnado v Ford and, to an extent in O’Brien, there was uncertainty as to
the relevant facts. The Secretaries of State contended that there was no such
uncertainty in the present case. If there was any uncertainty it was not as to the
facts but as to whether the United States would accede to a request from the United
Kingdom to release Mr Rahmatullah. The Secretaries of State submitted that there
was, in fact, no uncertainty as to this – it was plain that the United States
authorities would not accede to such a request. In these circumstances the
approach adopted in O’Brien was not appropriate. These submissions on the
“control issue” were one of the two matters upon which the courts below and most
of the argument in this Court focussed.
94. The Secretaries of State further submitted that whether to request the United
States authorities to release Mr Rahmatullah was a matter that fell within the
conduct of the foreign affairs of this country which was an area into which the
Page 31
courts should not stray (“forbidden territory”). The “forbidden territory” issue was
the other matter on which the courts below and most of the argument in this Court
focussed.
95. Before this Court there was a further matter that received some
consideration. This was the illegality of Mr Rahmatullah’s detention. In this
country detention is, prima facie, a violation of the “liberty of the subject” (and for
this purpose anyone detained within this jurisdiction is treated as a “subject”,
regardless of his nationality). The customary object of habeas corpus is to make
the respondent to the writ justify the detention of the prisoner in his custody. If he
fails to do so, the illegality of the detention is presumed.
96. In the courts below Mr Eadie QC, for the Secretaries of State, did not make
submissions in respect of the legality of Mr Rahmatullah’s detention. He submitted
that, as Mr Rahmatullah was detained by the authorities of the United States, it was
not appropriate to do so. This was another area of “forbidden territory”.
Accordingly he took his stand on the issues relating to control. In this Court, when
pressed with the question of illegality, Mr Eadie went so far as to submit that it
was not clear that Mr Rahmatullah fell within the protection of either of the
Geneva Conventions. He did not, however, advance a positive case on this matter.
97. The facts of this case differ markedly from those of Barnado v Ford and
O’Brien. In those cases the defendant had unlawfully detained the prisoner within
the jurisdiction and unlawfully removed him from the jurisdiction. Those cases
thus proceeded on the basis that the defendant was responsible for the unlawful
detention of the prisoner outside the jurisdiction. In this case no one has suggested
that the forces of the United Kingdom acted unlawfully in detaining Mr
Rahmatullah in Iraq, or in then transferring him to the custody of the United States
forces. In so far as the United Kingdom’s conduct has been criticised it is in failing
to observe its obligations under one or other of the Geneva Conventions. I consider
that an important, perhaps the most important, issue raised by this appeal is
whether the O’Brien approach should have been adopted on the very different facts
of the present case. I shall call this “the unexplored issue”.
The result in this case
98. In a detailed and careful judgment Lord Kerr has set out the facts of this
case and he has addressed the two issues that I have identified as having been
those upon which the courts below and the argument have focussed. He has
concluded that the appeal should be dismissed. He has held that it was proper to
apply the O’Brien approach to resolve the uncertainty as to whether the United
States would respond to a request to release Mr Rahmatullah. He has further held
Page 32
that this did not involve trespassing on the forbidden territory. Putting the
unexplored issue on one side, I agree with his judgment. Let me notionally rewrite
the facts so as to render them similar to those in O’Brien. Imagine that the United
Kingdom authorities had unlawfully seized Mr Rahmatullah in this country, had
clandestinely transported him to Afghanistan and there handed him over to the
United States forces. And imagine that before doing so, they had entered into a
memorandum of understanding with the United States under which the United
States agreed to hand Mr Rahmatullah back to the United Kingdom if requested to
do so. And imagine that there was uncertainty as to whether the United States
would comply with the memorandum of agreement. And imagine that the United
Kingdom, in the interests of good relations with the United States, did not wish to
request the United States to do so. I would have had no hesitation in those
circumstances in applying the O’Brien approach. The reservations that I have in
this case, and they are strong reservations, relate to the unexplored issue. As that
issue has not been explored, it would not be right to resolve it against Mr
Rahmatullah. I am, however, concerned that this case should not be treated as
resolving it in his favour. In these circumstances I have decided that the right
approach is to concur with the judgment of Lord Kerr, but to spell out my
reservations in relation to the unexplored issue.
99. So far as the cross-appeal is concerned, I agree with the judgment of Lord
Kerr, for the reasons that he gives.
The unexplored issue
100. Habeas corpus was a remedy usually sought on behalf of those who were
unquestionably imprisoned within the jurisdiction. One reason for passing the
Habeas Corpus Act 1679 was to expedite the procedure in respect of such
prisoners. Section 11 of that Act was, however, intended to address the practice of
taking prisoners outside the jurisdiction, thereby depriving them of the benefits of
habeas corpus. This was made a criminal offence and an act giving rise to a claim
for false imprisonment, the damages for which were set at a minimum of £500.
More recently habeas corpus has commonly issued against a person who has been
responsible for the unlawful detention and removal from the jurisdiction of a
prisoner, provided that he has thereafter retained control over the prisoner. O’Brien
was such a case.
101. Lord Kerr has set out the details of O’Brien at paras 46 to 48 of his
judgment. A critical issue in that case was whether the Home Secretary retained
sufficient control over Mr O’Brien to justify the issue of the writ. There was,
however, an important antecedent issue namely, in the words of Bankes LJ at p
375:
Page 33
“Whether since the establishment of the Irish Free State an order can
be lawfully made by the Home Secretary for the internment in that
State of a person at the date of the order residing in England.”
102. The major part of the judgment of Bankes LJ was devoted to resolving that
issue. He concluded that the order for Mr O’Brien’s detention had been unlawful.
The major part of the judgment of Scrutton LJ was also devoted to the question of
whether the Home Secretary, “who ordered his arrest and deportation to Ireland”
(p 383) had done so lawfully. He held (p 387) that he had not. At the end of his
judgment (p 391) he dealt quite shortly with
“the question of whether a writ of habeas corpus is the appropriate
remedy for the illegality of the order and detention” (my emphasis).
103. Atkin LJ summarised the case comprehensively as follows at p 393:
“That a British subject resident in England should be exposed to
summary arrest, transport to Ireland and imprisonment there without
any conviction or order of a Court of justice, is an occurrence which
has to be justified by the Minister responsible.”
104. It seems to me at least questionable whether a claim for habeas corpus
would have succeeded if the authorities of the new Irish Free State had seized and
imprisoned Mr O’Brien on their own initiative, but were likely to be amenable to a
request for his release by the United Kingdom, notwithstanding that Mr O’Brien
was a British subject. Such a situation would have resembled that which arose in
the case of R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs
[2002] EWCA Civ 1598; [2003] UKHRR 76. That case related to a British subject
detained by the United States authorities in Guantanamo. The Court of Appeal was
careful not to trespass on the forbidden territory, and no one in that case thought
that it might be appropriate to seek the issue of a writ of habeas corpus.
105. I know of no case in this jurisdiction where habeas corpus has issued in
respect of a person, British or alien, held unlawfully outside the jurisdiction by a
foreign State, on the simple ground that the United Kingdom was, or might be, in a
position to prevail upon the foreign State to release him, although I note that the
Federal Court of Australia has accepted that it was arguable that habeas corpus
would lie in such circumstances in respect of an Australian citizen held by the
United States in Guantanamo: Hicks v Ruddock [2007] FCA 299; (2007) 239 ALR
344.
Page 34
106. Does it make a difference that the United Kingdom, having lawfully
detained Mr Rahmatullah in the field of battle, handed him over to United States,
an act not unlawful in itself? Can Mr Rahmatullah invoke in domestic proceedings
the obligations of the United Kingdom under the Geneva Conventions? Is that
question affected by the fact that section 1(1) of the Geneva Conventions Act 1957
makes it a criminal offence to be party to a “grave breach” of any of the Geneva
Conventions? And if domestic law does provide Mr Rahmatullah with a remedy,
is this the exocet of habeas corpus, which pays no regard to forbidden territory, or
does the remedy perhaps lie in judicial review and the doctrine of legitimate
expectation?
107. These are difficult questions. They have, unfortunately, not been addressed
on this appeal. The object of this judgment is to make it plain that, despite the
result of this appeal, so far as I am concerned they remain unresolved. Subject to
this reservation I would, for the reasons given by Lord Kerr, dismiss the appeal
and the cross-appeal.
LORD REED
108. I agree that the appeal at the instance of Mr Rahmatullah should be
dismissed, for the reasons given by Lord Kerr. I have also concluded that the
appeal at the instance of the Secretaries of State should likewise be refused. I have
however reached that conclusion for reasons which I would wish to express more
narrowly than those given by Lord Kerr. I can explain those reasons relatively
briefly.
109. As Lord Phillips has explained, the writ of habeas corpus requires a
respondent who is detaining a person (“the prisoner”) to produce him before the
court and to justify his detention. If the respondent cannot justify his detention of
the prisoner, he will be ordered to release him. His failure to comply with such an
order will fall within the scope of the court’s jurisdiction to deal with contempt. It
follows that the appropriate respondent to the writ is in principle the person who
has custody or control (or, as it has sometimes been put, actual custody or
constructive custody) of the prisoner: that is to say, either the actual gaoler, or
some other person who has “such control over the imprisonment that he could
order the release of the prisoner” (R v Earl of Crewe, Ex p Sekgome [1910] 2 KB
576, 592 per Vaughan Williams LJ). As Scrutton LJ said in the case of R v
Secretary of State for Home Affairs, Ex p O’Brien [1923] 2 KB 361, 391, if the
court is satisfied that the body whose production is asked is not in the custody,
power or control of the person to whom it is sought to address the writ, a writ of
habeas corpus is not the proper remedy.
Page 35
110. Cases can arise in which it is uncertain whether the respondent has
sufficient control of the prisoner’s detention to be required to justify his detention
and to be ordered to release him. In such a case, the court can issue the writ so that
it can determine the question of control on the return, with a fuller knowledge of
the facts. The cases of Barnardo v Ford [1892] AC 326 and Ex p O’Brien are
examples.
111. These principles do not appear to me to have been in doubt at any stage of
the present proceedings. The Divisional Court declined to issue the writ because
they considered that the evidence as to the extent of control exercised by the
Secretaries of State was clear, and that all that could be said was that there was a
possibility that the United States of America might accede to a request by Her
Majesty’s Government for the release of Mr Rahmatullah. The existence of such a
possibility did not confer upon the Secretaries of State control over Mr
Rahmatullah’s detention (Rahmatullah v Secretary of State for Foreign and
Commonwealth Affairs [2012] 1 WLR 1462, para 29, per Laws LJ). That approach
was consistent with the principles which I have summarised. The difficulty with
the Divisional Court’s decision, however, was that the reasons given (at para 33)
for concluding on the evidence that there was no control were unsatisfactory. In
particular, the fact that the 2003 MoU was not enforceable in law did not entail
that it was not enforceable de facto.
112. The Court of Appeal on the other hand concluded, on the basis of its
analysis of the evidence, that there was sufficient uncertainty to justify the issue of
the writ. Although the primary facts were clear enough, it remained unclear
whether the United Kingdom was in a position to make an effective demand for
the return of Mr Rahmatullah from the custody of the United States. That appears
to me to have been a reasonable conclusion. In terms of the 2003 MoU, in
particular, the United Kingdom and the United States had agreed that persons such
as Mr Rahmatullah, who had been detained by British forces and transferred to the
custody of the United States, would be returned upon request. On its face, that
agreement gave the Secretaries of State de facto control over Mr Rahmatullah’s
detention, on the reasonable assumption that the United States would act in
accordance with the agreement it had entered into. In so far as the witness
statements produced on behalf of the Secretaries of State emphasised that the MoU
was not intended to be binding in law, they were inconclusive, since the issue was
whether control existed in fact. In so far as they indicated that the Ministry of
Defence believed that the 2003 MoU had been superseded by a 2008 MoU, they
were again inconclusive, not least because the basis of that belief was unclear and
appeared to be open to question.
113. Lord Neuberger MR addressed the nub of the matter at para 44:
Page 36
“Given the important principle established and applied in the
Barnardo case [1892] AC 326, I would find it very unattractive to
conclude that a writ in habeas corpus cannot issue where uncertainty
as to the respondent’s control over the applicant arises from the
effectiveness and enforceability of certain agreements, even though
such a writ can (and, absent any countervailing reasons, I think
normally should) issue where the uncertainty arises from a need to
investigate the facts. Indeed, I am inclined to think that such a
distinction (i) does not work in theory (as in the end the effectiveness
and enforceability in practice of an agreement is a matter of fact
rather than law), and (ii) cannot really survive the decision and
reasoning of this court in the O’Brien case [1923] 2 KB 361.”
I respectfully agree with those observations.
114. None of the arguments presented in the present appeal has cast doubt on the
Court of Appeal’s approach to the relevant legal principles or on its evaluation of
the evidence. In particular, the argument that the issue of the writ was an
impermissible interference in diplomatic relations must be rejected. The purpose of
issuing the writ was to obtain clarification of the extent, if any, of the United
Kingdom’s ability to exercise control over the detention of Mr Rahmatullah. It did
not entail that the United Kingdom must demonstrate its lack of such control by
means of a practical test. Ultimately, however, if control existed, the court’s
obligation to order the release of someone whose detention was unlawful under
English law (if that were established) could not be deflected by considerations of
diplomacy.
115. There are only two further points I would wish to mention. First, it is
important, in my view, that Mr Rahmatullah was initially detained by British
forces, with the consequence that the question was whether the Secretaries of
State’s control over him had been relinquished. But for that factor, I would find it
difficult to see why the English courts should entertain an application which would
otherwise have no real or substantial connection with this jurisdiction. Secondly,
like Lord Phillips, I would wish to reserve my opinion as to what he has described
as the unexplored issue: as I would put it, the implications of the fact that there
was no suggestion that the Secretaries of State had committed any civil wrong
under English law in respect of the detention of Mr Rahmatullah.
Page 37
LORD CARNWATH AND LADY HALE
116. We gratefully adopt Lord Kerr’s exposition of the facts and the relevant
law, which was not materially in dispute. We agree with him that the Secretaries of
State’s appeal should be dismissed, but we differ respectfully on the cross-appeal.
117. We agree in particular that the crucial issue is that of control in the context
of the law of habeas corpus, rather than legality as such. Legality is not an issue to
be considered in the abstract. It arises as between the applicant and the respondent,
and then only if the respondent has “control”. We do not need therefore to consider
whether the detention is legal in any broader sense, in particular whether it is
lawful from the perspective of the United States government.
118. On the issue of control, in our view, the effect of the two MoUs concluded
in 2003 and 2008 is crucial. The obligations of the UK under GC4 may explain
why it had a continuing responsibility under international law, but “control” is a
different issue turning on the realities of the relationship between the UK and the
USA as the currently detaining power. It is doubtful whether provisions of an
international treaty can on their own be relied on as giving control for the purposes
of the domestic law of habeas corpus. It is particularly difficult in this case where
it was known that the USA, unlike the UK, did not regard GC4 as applicable to the
applicant, because of his alleged Al-Qaeda links.
119. In our view clause 4 of the 2003 MoU is central to this issue, because, on
the evidence, it was designed specifically to ensure that the UK did retain control
over the continuing legality of the detention, having regard to its own
responsibilities under GC4 and the related domestic statute, and its knowledge of
the different US position.
120. There is a possible issue as to whether the 2008 MoU, which did not
contain an equivalent clause, was intended to alter the position in relation to those
already detained. The evidence is equivocal on this point. However, the document
does not in terms have that effect. Further, it is notable that the 2008 MoU was
signed by the Secretary of State for Defence in March 2009, very shortly after his
statement to Parliament (referred to by Lord Kerr para 38) expressing regret at the
government’s failure in June 2004 to question the removal of the applicant to
Afghanistan. It would be very remarkable, if at the very time that the Secretary of
State was apologising to Parliament for that oversight, and at a time when the
government remained responsible under international law, he was signing away his
power to do anything about it. In the absence (as yet) of any contrary assertion on
behalf of the US, we would proceed on the basis that clause 4 of the 2003 MoU is
still effective in respect of the applicant.
Page 38
121. We are not unduly concerned by the “unexplored issue” identified by Lord
Phillips and Lord Reed. Nor are we surprised that Mr Eadie did not attempt to
explore it further. The strength of habeas corpus is its simplicity. There may be
interesting theoretical arguments, turning on the different categories of illegality
that may be in play: under international, criminal, or civil law. But the applicant is
not concerned with such nice distinctions. For his purposes, detention once
established is presumed to be illegal until the contrary is shown by the detainer or
the person allegedly in control. The argument would have had to be that the
removal of the applicant to, and his continuing detention in, Afghanistan may be
illegal under international law as understood in this country, and they may also
have involved breaches of domestic criminal law; but they did not and do not
involve any tort under domestic civil law. Even if that is a valid line of distinction,
which we doubt, we can well understand why it might not have seemed very
attractive to those advising the Secretaries of State.
122. In any event, we do not think the unexplored question arises in the form in
which Lord Phillips states it. The case does not (and could not in our view) rest on
the “simple ground” that the UK might be in a position to persuade the US to
release the applicant (para 105). It rests on the much stronger basis that the UK
was the original detaining power, that as such it has continuing responsibilities
under GC4, and that it entered into an agreement with the USA giving it the
necessary control for that purpose.
123. As to the authorities, we accept of course that there are factual differences
from O’Brien, in particular because in that case, unlike the present, the original
detention was itself unlawful. However, habeas corpus is equally applicable where
detention, originally lawful, later becomes unlawful. It is true also that in this case
the illegality of the detention arose through the actions of the US, rather than the
UK, and at a time when the UK no longer had actual custody. However, it is
difficult to see why this should make a difference in principle. Since illegality of
detention is presumed in favour of the applicant, it should not be a defence for the
UK to say that it arose from someone else’s actions, if the UK has the practical
ability to bring it to an end.
The cross-appeal
124. In considering the cross-appeal, it is important not to lose sight of the
extreme circumstances with which we are faced. The applicant was captured by
British forces in Iraq. He may or may not have been fighting for the enemy. He
says not; but even if he had been, he would have been entitled to release many
years ago, if still in British custody, and he would have been released. Instead he
has been imprisoned by the USA, which takes a different view of the requirements
of international law, and accepts no limitations on its right to detain in these
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circumstances. As a result the applicant, as far as his family was concerned,
vanished without trace in 2004, until he was rediscovered in Afghanistan years
later.
125. If our analysis of the appeal is correct, the basis for issuing the writ was, or
should have been, the apparent control provided by the 2003 MoU, supported by
the UK’s continuing responsibility as detaining authority under GC4.
Unfortunately, neither the UK letter nor the USA response began to address the
real issue.
126. The UK government’s letter missed the point. It should have made it clear
(i) that the 2003 memorandum of understanding, including clause 4, governed the
case; (ii) that the UK government had an unqualified right under that memorandum
of understanding to require the return of the detainee; and (iii) that it was irrelevant
to that unqualified right whether or not the USA considered that they were entitled
to continue to detain the prisoner under their own view of international law. They
had made an undertaking to the UK which it remained their duty to honour.
127. Similarly Mr Lietzau’s letter for the US government, failed to mention, let
alone respond to, the central point, which was not whether the US (from its own
perspective) had a legal basis for detaining the applicant, but whether it accepted
the distinct role of the UK as the detaining authority, and by virtue of the 2003
MoU.
128. The answer accepted by the Court of Appeal is that, in the light of the
Secretaries of State’s evidence, and in the language of diplomacy, the letter was to
be read as an unequivocal refusal, and the court should not go behind that. As Lord
Neuberger of Abbotsbury MR said (para 11):
“The language of diplomats representing different states discussing a
problem can no doubt be very different from that of lawyers
representing different interests discussing a problem or even the
same problem, particularly when as here, the problem may be one of
some sensitivity.”
129. We cannot accept this reasoning. We do not understand either why the US
government should have had any diplomatic problem in expressing its position
clearly, or still less why the court should acquiesce in that position. The US must
have a view on the whether the UK retains an interest in the matter. Either it
accepts that the UK retains an interest as detaining authority, and under the 2003
MoU, or it does not. One way or the other it should address the issue. Where
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liberty is at stake, it is not the court’s job to speculate as to the political sensitivities
which may be in play.
130. For example, the US might plausibly have argued that whatever rights the
UK may have had in 2003 have been effectively waived by its failure to take
action in 2004, when its officials became aware of the transfer, or to raise the point
at the time of the 2008 MoU. That might cause some marginal embarrassment to
the UK officials at the time, but it is difficult to see what diplomatic difficulty it
should cause now either to the US or the UK, or in any event why the courts
should take notice of that as a factor. The fact that this argument has not been
raised suggests that it may be a difficult one, so long as, under international law,
the UK’s responsibility under GC4 has not lapsed. Alternatively, it may be that
both the UK and the US would prefer to leave the problem with the US authorities,
rather than face up to what the UK would do with the applicant if he were to be
transferred to them. That again is not a factor which should impress the court.
131. The governing consideration for the court should be that the applicant
remains in detention in Afghanistan, many years after the conflict in Iraq ceased,
and after GC4 (as seen through British eyes) required him to be released. He has
now also been assessed by the US Detainee Review Board as suitable for release.
Although Mr Lietzau’s letter refers to discussions with the Pakistan government
over the terms of transfer to them, we still have no clear indication as when that is
likely to happen. In these circumstances, in our view, the court should not rest on
an inconclusive response, but should require the resubmission of the request in
terms specifically relying on the UK’s continuing responsibility under GC4 and its
continuing rights under the MoU.
132. We would therefore dismiss the appeal and allow the cross-appeal.
