Ali Hussein v Secretary of State for Defence  EWHC 95 (Admin) – read judgment
Collins J has dismissed a claim that the MOD’s policy of allowing interrogators to shout at a captured person in order to obtain information is unlawfully oppressive. Not only did the complaint fail but it was denounced as “misconceived” and one which should never have been pursued.
British armed services have two policies for questioning captured persons (CPERS) who are believed to possess valuable information which may protect the lives of other members of the forces or civilians, for example the location of roadside bombs. The first one deals with tactical questioning (TQ), which is routinely conducted at the point of capture. The other deals with interrogation, which is carried out by specialist trained troops in facilities approved for the detention of CPERS and equipped and authorised for interrogation. Each is to be applied worldwide wherever CPERS need to be questioned by British troops. The individuals behind this claim are both Iraqi citizens who live in Iraq. Neither of them lives in Afghanistan, the only country where the policy is in use or likely to be used. Without the element of public interest in this case they would neither have been granted standing to pursue the claim.
When this litigation was first proposed, the Ministry of Defence was still awaiting the recommendations of Sir William Gage in the Baha Mousa Inquiry before finalising their new policy on questioning techniques (see my post on the report). When the report did come out, the Secretary of State for Defence reacted to Sir Gage’s recommendations by informing Parliament he accepted all of them save the proposal for a “blanket ban …. on the use of certain verbal and non physical techniques”. Without waiting for the detail of the new policy to assess whether it did in fact properly reflect Sir William’s concerns, public funding was granted and this claim was issued.
Following the publication of Sir Gage’s recommendations the following techniques involved in the so called “harsh policy” were prohibited: the requirement to maintain physical postures which are extremely uncomfortable, painful or exhausting, hooding, exposure to excessive noise, sleep deprivation and deprivation of food or water. The new policy for questioning, the “Challenging Approach”, was designed to avoid the deficiencies of the “harsh policy” by prohibiting intimidating behaviour or threats of violence by the interrogator but allowing a range of attitudes such as sarcasm and scepticism that would focus the CPERS’s mind on the reality of the situation and the futility of not cooperating with the questioner.
It is intended to deliver a short sharp shock where a CPERS being interrogated appears to have deliberately disengaged from his questioner but there is a belief that he holds valuable information which the use of this tactic might elicit.
The new policy was designed, in short, to save lives without any resort to torture, cruel, degrading or inhuman treatment. The evidence before the court showed that this approach had achieved a result where a CPERS had ignored all attempts to question and was refusing to give any answers but, following its use, there was a re-engagement and the provision of valuable information.
The essence of the claim was that shouting at a captured person during questioning, as proposed, was in effect the former “loud harsh” policy by another name. The first ground relied on by the claimant was that this approach involved the offence of common assault. This argument was, in Collins J’s view, “utterly without merit”: there was nothing in the conduct of the questioning which could have led to a fear of immediate violence.
The second ground was that the defendant failed to abide by the Geneva Convention’s prohibition on certain types of intimidation. This argument was also rejected. Even assuming that a CPERS is protected by the Geneva Convention, the prohibition on extracting information from prisoners of war could not be used as a ground for saying that the Challenging Approach to a CPERS to get information breached that prohibition.
While it may be that there is a right of silence to be attributed to POWs, there is no such right applicable generally to CPERS. The questioning is not for the purpose of self incrimination but to obtain valuable information which may protect lives. The right not to incriminate oneself and the so-called right of silence are by no means necessarily coterminous.
The implications of the claimant’s submissions were that the discarding of the word “harsh” in the MOD’s questioning policy was mere window dressing. Again, the judge did not agree. From what he had seen in the excerpts from the hearings and the training and the limitations and controls on the use of Challenge Direct it was clear that “real efforts have been made to ensure compliance with the Geneva Conventions and to avoid any risk of non-compliance.” In his judgment, those efforts had succeeded.
Counsel for the claimant contended that to shout was oppressive and that sufficed to indicate that it was not humane treatment. But that was an unrealistic approach.
What is humane must be judged in the context of interrogation which will inevitably be to an extent oppressive for the person being interrogated.
If used in accordance with and applying the controls required by the policy the use of Challenge Direct could not be regarded as a breach of the obligation of humane treatment, under Article 3 of the Human Rights Convention or any other instrument.
The claimant’s suggestion that to shout in the manner permitted by the policy would render any answers given inadmissible in criminal proceedings was immaterial, said the Court. The purpose of the questioning is not to obtain admissions for the purpose of prosecution but to obtain information which would be likely to save lives and assist in the pursuit of those hostile to the British forces. “Oppressive” is not a word that should be applied loosely. For example in R v Mushtaq  1 WLR 1513 Lord Carswell said that oppression would be constituted by “questioning which by its nature, duration or other circumstances (including the fact of custody) excites hopes (such as hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent.” None of these observations showed that any real oppression exists in the proper use of Challenge Direct.
Hallett LJ agreed that this claim should be dismissed, adding the stern observation that she had “very real doubts as to the propriety of spending precious time and resources on this litigation.” It was premature and in her view misconceived.
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