Release of Pakistani detainee ordered by Court of Appeal

20 December 2011 by

Rahmatullah v Secretary of State for the Foreign and Commonwealth Office and the Secretary of State for Defence  [2011] EWCA Civ 1540  – read judgment

A Pakistani detainee was sufficiently in the control of the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence to support the issue of a writ of habeas corpus, and it should not be withheld on any grounds concerned with diplomatic relations.

“Habeas corpus” is a legal action through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The original Latin designation simply means the initiation of a process requiring a person to be brought before a judge.  It is a fundamental principle of 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.

In this case the appellant (R), a Pakistani national, had been captured by British forces in Iraq in 2004, handed to United States forces and transferred to a US airbase in Afghanistan as a suspected member of a proscribed organisation with links to Al-Qaeda. There he continued to be detained without trial. He sought the issue of a writ of habeas corpus, relying on a 2003 memorandum of understanding (MoU) between the United Kingdom, the US and Australia, active at the time of R’s capture, under which the UK retained full rights of access to any UK-detained prisoners of war and a right to request their return.

Contrary to the MoU, the UK Government had not been formally consulted about R’s transfer to Afghanistan. Despite a determination by the US in June 2010 that R was no longer an enduring security threat, that his continued internment was not necessary to mitigate the threat he posed, and that he should be released to Pakistan, he remained in detention at Bagram, a place said to be notorious for human rights abuses. R submitted that a writ should be issued requiring the secretaries of state to ask the US authorities to release or return him since his detention was unlawful and, although he was detained by the US, the secretaries of state enjoyed a sufficient degree of control over him to bring about his release. The court refused R’s application, having accepted the respondents’ submissions that the evidence established that they did not exercise control, or at any rate a sufficient degree of control, over R to justify a writ of habeas corpus being issued, and that the issue of the writ would involve the UK Government in making a request of the US Government, which would involve stepping into the field of foreign relations. On appeal, the appellant contended that his detention was unlawful, since the US authorities had not discharged their burden of showing that his detention was lawful. The respondents did not challenge R’s right to rely on that principle. R argued that he was sufficiently in the control of the UK Government to support the issue of a writ. The secretaries of state submitted that the very fact that a writ of habeas corpus would effectively require the UK Government to make a request of a foreign sovereign power was, at least in this case, a very powerful factor against it being issued.

The Court of Appeal’s decision

Appeal allowed. There was reason to doubt whether the secretaries of state had lost control of R, and the uncertainty on that issue was sufficient to justify an order for habeas corpus. There was a substantial case for saying that the UK Government was under an international legal obligation to demand R’s return, and the US Government was bound to accede to such a request. Now that the Iraq war had ended and that the US authorities had determined that R ought to be returned to Pakistan, it seemed to the Court “at least strongly arguable” that the applicant should have been released by virtue of the Geneva Convention on the treatment of prisoners of war,  under the provisions of the Geneva Conventions Act 1957 Sch.4, which incorporates the two Geneva Conventions on the treatment of prisoners of war and civilians respectively. If the memorandum was still in force, it would reinforce that conclusion. The courts should take into account agreements such as the MoU and should assume that they would be adhered to, following RB (Algeria) v Secretary of State for the Home Department (2009) UKHL. Whilst the UK Government had considered that it would be inappropriate and futile to ask the US Government to return R, that observation could not on its own justify the conclusion that there was little, let alone no, real possibility of a writ resulting in R being handed over. If anything, the observation rather supported the proposition that there were grounds for doubting whether control over R had been lost.

The court could not enter the forbidden areas, including decisions affecting foreign policy. However, the only evidence to support the contention that the issue of a writ of habeas corpus would cause any problems in the diplomatic field was the assertion that it would be inappropriate and futile. The foreign relations point took the court no further in determining the issue of control over R: that was the true question, and if the secretaries of state were properly amenable to it, the writ should not be withheld on any grounds concerned with diplomatic relations. Weighing the importance of international comity against the right to habeas corpus, the Master of the Rolls observed that

while it is important not to be seduced by romantic notions or purple prose, it remains the fact that habeas corpus has, as Laws LJ said at 2011] EWHC 2008 (Admin), para 11 been described as ‘”perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement” (O’Brien [1923] AC 603 per Lord Birkenhead at 609), and as “the most efficient protection yet developed for the liberty of the subject” (Ex p. Mwenya [1960] 1 QB 241 per Lord Evershed MR at 292, citing Holdsworth, History of English Law, vol. 9 pp. 108-125)’.

A writ of habeas corpus was, accordingly, issued (paras 47-54). Kay LJ, in his concurring opinion, added that in his view, the issue of a writ of habeas corpus in this case does not transgress or modify the principle of a “forbidden area” affecting foreign policy which is beyond judicial concern. Whilst acknowledging that there were still matters of foreign policy which are not susceptible to judicial review, in this case

 the applicant is being unlawfully detained and the Secretaries of State have procedures at their disposal, whether arising solely from the Geneva Conventions or from a combination of the Conventions and the MoUs, to enable them to take steps which could bring the unlawful detention to an end. Beyond the unamplified invocation of “inappropriateness” and “futility”, it is not explained why use of such procedures would or might damage the foreign relations of this country. In my judgment, the Court should be studious to avoid a refusal to protect personal liberty by withholding a writ of habeas corpus on such flimsy grounds. I do not say that it will never be lawful to refuse to act by reference to state interest but I do not accept that it has been demonstrated here that inhibitions about so doing negate the element of “control”.

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