ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LLOYD JONES
LORD JUSTICE MOORE-BICK
Between:
HUSSEIN
Appellant
v
SECRETARY OF STATE FOR DEFENCE
Respondent
DAR Transcript of the Stenograph Notes of
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Mr T Owen, QC and Mr D Friedman, QC (instructed by Public Interest Lawyers) appeared on behalf of the Appellant
Mr S Wordsworth, QC and Ms A Sander (instructed by Treasury Solicitors) appeared on behalf of the Respondent
J U D G M E N T
LORD JUSTICE LLOYD JONES: This is an application on behalf of Mr Haidar Ali Hussein for permission to appeal against a decision of the Divisional Court (Hallett LJ and Collins J) dismissing the Claimant's application for judicial review. That is reported at [2013] EWHC 95 (Admin) . The proceedings challenge the lawfulness of policies of the Secretary of State for Defence which apply to the questioning of persons captured by United Kingdom Armed Forces. Those persons are referred to by the acronym CPERS. In particular, the proceedings challenge an approved technique of questioning.
The present policies are dated 16 May 2012. One deals with tactical questioning, the other with interrogation. Tactical questioning is routinely conducted at or close to the point of capture, but may be carried out later if the circumstances require. Interrogation on the other hand is to be carried out by specialist trained troops in facilities approved for the detention of CPERS and equipped and authorised for use.
The element of the policies under attack in this claim is what is called the Challenging Approach. It has been developed following the report of Sir William Gage's inquiry and taking account of his recommendations. The Defendant, we are told, has sought to apply them so as to avoid the potential unlawfulness apparent in the "harsh" approach. The claim in relation to indirect challenging was abandoned below. We are now concerned only with direct challenging which involves shouting at the person being questioned.
The proceedings have followed an unusual course. The original Claimant was Mr Ramzi Saggar Hassan, an Iraqi national who had been arrested in 2007 and who alleged ill treatment during questioning, including being subjected to shouting. By an order made by consent on 12 November 2012, Mr Hussein was substituted as a Claimant. He too is a Iraqi national. He had been arrested in December 2004. He alleges that he was physically ill treated both before and during his questioning and was subjected to substantial periods of shouting.
In view of the fact that there is no longer any possibility of Mr Hassan or Mr Hussein being subjected to present policies, there being no longer any United Kingdom Armed Forces in Iraq, it is not surprising that the Defendant asserted at the outset that the Claimant lacked standing. However, the proceedings have come this far without the issue of standing having been decided. Ouseley J granted permission to apply for judicial review indicating that the Defendant should be permitted to raise serious threshold arguments, including standing, at the substantive hearing.
At that substantive hearing, Collins J, in delivering a judgment on the merits, observed that he was far from persuaded that the Claimants have standing. He said that certainly neither Claimant is or could be affected by the policy. He referred to the suggestion that the Claimant might be a potential future victim since the United Kingdom continued to carry out military intelligence co-operation with Iraq, a suggestion which he dismissed as unsupportable.
In his view, the reality was that the only possible basis for allowing the claim to proceed would be if it could be said that the public interest required that the issue be determined by the Court and the Claimants by reason of their past experiences could be said to be sufficiently representative of those who might have standing. However, since he had no doubt the claim must fail on the merits, Collins J considered that there was little point in relying on lack of standing as a separate basis for refusing relief to the Claimant.
Hallett LJ delivered a concurring judgment in which she said that she had very real doubts as to the propriety of spending precious time and resources on this litigation which she considered premature and misconceived. She also observed that without the element of public interest, both Claimants were always likely to fail on the issue of standing.
The Divisional Court having refused permission to appeal, an application was made to this court. Maurice Kay LJ, having considered the matter on the papers, adjourned the consideration of the application to an oral hearing. He made the following observations.
He invited the Secretary of State to provide a submission in writing within 21 days on the legal merits of the application and on the issue of standing. He said that he was taking that course, because whilst his provisional view was that the legal merits of the application may be more arguable than the Divisional Court considered them to be, he was concerned about the issue of standing. The Applicant and his predecessor are Iraqi nationals who have no connection with Afghanistan. He questioned whether the relaxed view taken to standing in the Divisional Court apparently on public interest grounds should necessarily continue into this court. He gave permission for the Applicant to reply in writing within 7 days on the issue of standing only. Both parties duly filed submissions.
The principal submissions of the Respondent on standing are, first, that the Claimant is not an individual directly affected by the matters which are the subject of the claim. In particular, the challenged direct approach was not in place in December 2004 when the Claimant was arrested. Secondly, there is no realistic prospect of his becoming a victim. Thirdly, the Claimant is not representative of those who might have standing to bring the claim. Fourthly, so far as the claim is founded on the European Convention on Human Rights he is not a natural or legal person directly affected by the act or omission which is said to give rise to a breach of the Convention. Finally, it is said this is not the sort of exceptional case where it is necessary to accord standing to some person or entity other than a directly affected person because it is important to vindicate the rule of law.
The Applicant submits that because of the treatment this Claimant received in 2004 he does have a sufficient interest to bring the proceedings. However, the Applicant goes on to submit that he is also one of the Claimants in proceedings so far reported as Ali Zaki Mousa v Secretary of State for Defence [2013] EWHC 1412 (Admin); proceedings in which we are told the argument for the need for further inquiry with regard to interrogation training policy is being resisted by the Ministry of Defence on the ground that these present proceedings have definitively disposed of the issue.
It is also said on behalf of the Applicant that by reason of his past experience he is sufficiently representative of those who might have standing. See Al Bazzouni v The Prime Minster [2012] 1 WLR 1389. It is further said that unless this Claimant is permitted to bring the challenge the likelihood of another challenge by someone with standing is far from secure. Accordingly, it is said that this is a case where the Court should accept that the Claimant has standing because of the importance of vindicating the rule of law. See the R v Secretary of State for Foreign and Commonwealth Affairs ex p. World Development Movement Limited [1995] 1 WLR 386.
In addition, the Claimant makes the point that in the light of the history of these proceedings it would be wrong in principle for this court to refuse permission to appeal on grounds of standing alone when it is submitted that the arguable merits of the appeal are made out.
At the forefront of the Applicant's case is his reliance on the Defendant's policy that in all operational theatres in which persons are detained by the United Kingdom forces "we will comply with applicable domestic and international law." The policy, therefore, requires the application of the standards set out in Common Article 3 of the Geneva Conventions of 1949 in the case of a conflict not of an international character.
Furthermore, the particular policies challenged in these proceedings provide that as a matter of policy and by law United Kingdom Armed Forces will, at a minimum, treat CPERS detained during international or non-international armed conflict or other prolific deployments in adherence to Common Article 3. Common Article 3 provides that persons taking no active part in hostilities shall in all circumstances be treated humanely. It goes on to prohibit certain specified categories of conduct.
The grounds of appeal which the Applicant wishes to argue may be summarised as follows. First, it is said that the Divisional Court erred in focusing purely on Afghanistan and confusing the law applicable to an international armed conflict and that applicable to a non-international armed conflict.
Secondly, it is said that the Divisional Court erred in its interpretation of Common Article 3 by reducing a positive obligation to treat humanely to a negative obligation to refrain from ill treatment and in equating a negative "inhumane" standard with inhuman and degrading treatment under Article 3 of the European Convention on Human Rights.
Thirdly, it is said that the Divisional Court erred in determining that in the context of interrogation, the minimum standard of treatment required for prisoners of war under Article 76 the Third Geneva Convention of 1949 may be permissibly higher than the standard of treatment required for civilians detained either in an international armed conflict where they will be protected persons or in a non-international armed conflict.
Fourthly, it is said the Divisional Court erred in holding that prisoners of war enjoy a right to silence that goes beyond providing name, rank and number to which civilians are not entitled outside of a conventional criminal law context.
Fifthly, it is said that even if the policy on its face appears to be lawful there is still a real risk that it will be exercised in a way that is not lawful, having regard to the circumstances in which it may be used.
The Secretary of State takes issue with all of these grounds and also questions their significance to the determination of the issue whether the policy complies with standards set by international law, in particular Common Article 3.
I have real concerns as to whether this Applicant has standing to bring these proceedings. However, I do consider that these proceedings give rise to issues which deserve to be considered by this court. A particular consideration here is that there is now a judgment in place on these issues.
In saying this, I should not be taken to express the view that these are strong grounds of appeal. However, in all the circumstances and in particular having regard to the course which these proceedings have followed to date, I do not consider it appropriate to deal at this hearing with the issue of standing. Instead I would grant permission to appeal and direct that the question of standing be determined by the full court at the same time as the hearing of the substantive appeal.
LORD JUSTICE MOORE-BICK: I agree.