Tim Owen QC and Danny Friedman (instructed by Public Interest Lawyers Ltd) for the claimant; Richard Whittam QC, Samuel Wordsworth and Amy Sander (instructed by Treasury Solicitor) for the Secretary of State for Defence.
The claimant, an Iraqi national, was arrested in Iraq in December 2004. He complained of his treatment by British forces, alleging that he was physically ill-treated both before and during his questioning and was subjected to substantial periods of shouting. In his claim for judicial review he challenged the lawfulness of certain elements of the defendant Secretary of State’s interrogation policy dated 16 May 2012. In particular he claimed that the policy, despite its revision following the Report of the Baha Mousa Inquiry by Sir William Gage (HC 1542–I) (2011), failed to deal with deficiencies in the defendant’s previous policy in that an aggressive and intimidating approach was still permitted by the tactic of shouting at the detainee (“CPERS”) being questioned. The grounds of claim included: (i) that certain permitted questioning techniques (“the challenge direct”) were unlawful in that they constituted the offence of common assault; and (ii) that the use of shouting was not humane treatment, in contravention of the applicable Geneva Conventions.
Claim dismissed. As to ground (i), there was nothing in the conduct of the questioning which could lead to a fear of immediate violence. Provided that it was carried out by a properly trained questioner who complied with the policy, there was no real risk that an offence of common assault could be committed. As to ground (ii), it was clear from the policies that the defendant had accepted that detainees had to be treated in accordance with any applicable Geneva Convention and had, in particular, to be treated at all times in a humane fashion. Thus any failure to comply with relevant obligations would constitute a breach of the approach that the defendant was applying and so be unlawful in public law terms. The question was whether the use of shouting over a short lived period subject to the controls set out in the policy was to be regarded as humane. It had to be borne in mind that questioning was permissible and accordingly all legitimate interrogation techniques had to be regarded as lawful. It was now apparent that whether or not treatment in interrogation could be regarded as unlawful would depend on whether it contravened a prohibition on treatment which would be regarded as inhumane. A useful guide could be obtained from article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms since it was clear that any physical ill-treatment of a detainee was likely to contravene it and other forms of coercion might do so, if sufficiently serious. There was no doubt that if used in accordance with and applying the controls required by the present policy the use of some aggressive shouting could not be regarded as a breach of the obligation of humane treatment. It had been suggested that to shout in the manner permitted was oppressive and would render any answers given inadmissible in criminal proceedings here. Whether or not that would be so did not seem to be material since the purpose of the questioning was 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. If it could be regarded as oppressive, it was not sufficiently seriously oppressive so as to amount to treatment which was not humane. If there was a prosecution, the admissibility of any answers would be a matter for the court before which a person was tried.