Challenge to intelligence services guidance succeeds in part – Shaheen Rahman

6 October 2011 by Guest Contributor

Equality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) – Read judgment

A challenge to published guidance for intelligence officers interviewing detainees overseas has been partially successful.

Mr Al Bazzouni and the EHRC argued that the guidance as to what officers should do if they suspect detainees might be subject to torture or to cruel, inhuman or degrading treatment or punishment (“CIDT”) was unlawful.

The guidance requires officers to consider whether there is a ‘serious risk’ that a detainee will be subject to torture or CIDT prior to interviewing them. An annexe to the guidance provides a non-exhaustive list of types of treatment that could constitute CIDT. The list includes at section d(iii):

methods of obscuring vision or hooding (except where these do not pose a risk to the detainee’s physical or mental health and is necessary for security reasons during arrest or transit”).

The court was not persuaded that there was any material distinction between a ‘serious risk’ or “real risk’ in this context, noting that:

The context is that the document is intended to give practical guidance to intelligence officers on the ground. It is not a treatise on English criminal law. What matters is how the document would be read and applied by individual intelligence officers, not how it would fare at the Law Commission or in a University Graduate Law School. The document makes clear that, in all relevant instances other than where there is no serious risk of CIDT (section 2 of the table), the officer must not proceed at all (section 1) or the matter must be referred to senior personnel or Ministers. [61]

In relation to the question of whether hooding constituted torture or CIDT the court held that –

The extended debate about whether hooding would be an assault, battery, infringement of Article 3 of the Convention or other illegality is largely beside the point. It may possibly be that, in certain factual circumstances, hooding might conceivably be none of these, although the nature of hooding and its prohibition must mean that it very often would be. [91]

However, the court held that the ‘series of difficult and confusing judgments which the exception in d(iii) of the Annex requires for its conceivably lawful operation is too great to expect officers on the ground to give effect to it without risking personal liability. The Government’s policy is, for good reason, to prohibit hooding. d(iii) of the Annex should be changed to omit hooding from the ambit of the exception.” [94]

An argument as to whether the EHRC had standing was resolved firmly in the Commission’s favour, the court noting that by section 3 of the Equality Act 2006, the Commission must exercise its function with a view to encouraging and supporting the development of a society in which there is, among other things, respect for and protection of each individual’s human rights and that by section 30 it has capacity to institute judicial review proceedings relevant to a matter in connection with which it has a function.

The practical effect of the judgment is that the section d(iii) of the Annex to the guidance should be changed to omit hooding from the ambit of the exception, despite the fact that the court agreed that might be circumstances in which hooding could be legal.

Shaheen Rahman is a barrister at 1 Crown Office Row chambers.

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