Richard Hermer QC, Ben Jaffey, and Nikolaus Grubeck (instructed by Leigh Day ) for the claimant; Michael Fordham QC, Shaheed Fatima, Hanif Mussa and Paul Luckhurst (instructed by Public Interest Lawyers ) for the Qasim claimants; James Eadie QC, Karen Steyn QC, Sam Wordsworth QC and Marina Wheeler (instructed by Treasury Solicitor ) for the defendant
The claimant in the first action, Serdar Mohammed, was captured by United Kingdom armed forces during a military operation in Afghanistan on 7 April 2010. He was suspected of being a Taliban commander and his continued detention after 96 hours for the purposes of interrogation was authorised by UK ministers. He was interrogated over a further 25 days. At the end of this period the Afghan authorities said that they wished to accept the claimant into their custody but did not have the capacity to do so due to prison overcrowding. The claimant was kept in detention on British military bases for this logistical reason for a further 81 days before he was transferred to the Afghan authorities. During the 110 days in total for which the claimant was detained by UK armed forces he was given no opportunity to make any representations or to have the lawfulness of his detention decided by a judge. On 25 July 2010 he was transferred into the custody of the Afghan authorities. The claimant claimed that his detention by UK armed forces was unlawful under the Human Rights Act 1998 and under the law of Afghanistan and claimed damages. At para 13 of the judgment the judge set out the preliminary issues for the court’s determination, which included whether the defendant could rely on the doctrine of act of state to preclude a claim for damages, false imprisonment and/or breach of the Human Rights At 1998, whether the claimant's detention was in accordance with article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), and whether the claimant's detention was lawful. In accordance with court orders of July and November 2013 the three claimants in the second action, whose claims raised similar issues, were also represented at the trial.
At para 6 the judge set out a summary of his findings. He concluded that UK armed forces operating in Afghanistan had no right under the local law to detain people other than a right to arrest suspected criminals and deliver them to the Afghan authorities immediately, or at the latest within 72 hours. On the facts assumed in this case the claimant’s arrest was lawful under Afghan law but his continued detention after 72 hours was not. That whenever a state which was a party to the Convention exercised, through its agents, physical control over an individual abroad, and even in consequence of military action, it had to do so in a way which complied with the Convention; and that the territorial scope of the Human Rights Act 1998 coincided with that of the Convention. Accordingly, the 1998 Act extended to the claimant’s detention by UK armed forces in Afghanistan. In capturing and detaining the claimant, the UK armed forces were acting as agents of the United Kingdom and not (or at any rate not solely) as agents of the United Nations. The UK Government was therefore responsible in law for any violation by its armed forces of a right guaranteed by the Convention. Article 5 of the Convention was not qualified or displaced in its application to the detention of suspected insurgents by UK armed forces in Afghanistan. The claimant’s extended detention was contrary to Article 5 of the Convention. In circumstances where his detention took place in Afghanistan, the law applicable to the question whether the claimant had suffered a legal wrong was Afghan law, which gave him a right to claim compensation from the UK Government. However, the English courts would not enforce that claim in circumstances where the claimant’s detention was an “act of state” done pursuant to a deliberate policy of the UK Government involving the use of military force abroad. Therefore the claimant could not recover damages in the English courts based on the fact that his imprisonment by UK forces was illegal under Afghan law. However, the act of state defence did not apply to claims brought under the Human Rights Act 1998 for violation of a right guaranteed by the Convention. Article 5(5) of the Convention gave the claimant an "enforceable right to compensation” which the courts were required to enforce.
Human Rights Act 1998, Sch 1, Pt I, art 5