Rahmatullah v Secretary of State for Foreign Affairs & Anor

This is an application for a writ of habeas corpus. The claimant is a national of Pakistan, currently detained by United States forces at Bagram Airbase in Afghanistan. The Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence are both named as defendants, but I shall refer compendiously to the Secretary of State in the singular.

The claimant has been incarcerated without trial for over seven years. He was captured by British forces in Iraq in February 2004. He was handed over to United States forces and transferred by them to Afghanistan. Since June 2004 he has been held by the Americans in Bagram Airbase. He has been assigned a Bagram “internment serial number”: 1433. On 5 June 2010 a US Detainee Review Board determined that the claimant’s continued internment was “not necessary to mitigate the threat he poses”. They held that he was “not an enduring security threat”. They decided that he should be released to Pakistan. But he remains at Bagram, a place said to be notorious for human rights abuses.

It was not until May 2010 that Mounir Ahmed, the claimant’s cousin, learned beyond doubt that the claimant was detained at Bagram. After considerable efforts spent seeking to discover his whereabouts, he was at length able to speak to the claimant by telephone on 29 May 2010, through the agency of the International Red Cross. The claimant is not able to instruct his lawyers directly. His case is being conducted with his consent on the instructions of Mounir Ahmed. Its essence is that (a) his detention is unlawful and (b) although he is detained by the Americans, the Secretary of State in fact enjoys a sufficient degree of control over him to bring about his release: in those circumstances, on authority a writ of habeas corpus should go to secure his production. At the very least, if there is doubt as to the Secretary of State’s power of control, the writ should issue so that the question may be tested.

At the heart of the claimant’s case on the facts is a Memorandum of Understanding (“the first MoU”) headed “An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United States of America and the United Kingdom of Great Britain and Northern Ireland, and Australia”. It was signed on behalf of the three States on 23 March 2003, three days after military operations in Iraq had commenced. As its opening words indicate, it establishes “procedures in the event of the transfer” from the custody of any one of the three Powers to any of the others of any person belonging to any of the classes named in the document’s heading. The document then sets out a series of numbered undertakings entered into by the three Powers. I will set out undertakings 1, 4, 5, 6 and 9. I should say that for the purposes of the facts of this case “the Accepting Power” is the USA and “the Detaining Power” is the UK.

“1.

This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law.

…

4.

Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power.

5.

The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.

6.

The Detaining Power will retain full rights of access to any prisoners of war, civilian internees, and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power.

….

9.

The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all rights and protections of the Convention even if transferred to the custody of an Accepting Power.”

It is common ground that this document was effective between the UK and the USA when the claimant was first captured and detained in February 2004. Mr Damian Parmenter, Head of Operational Policy within the Operations Directorate in the Ministry of Defence, states (first witness statement paragraph 22) that there are “indications that it may have been initially envisaged that it would only apply during the war fighting and occupation period” in Iraq, which ended on 28 June 2004. There are important features of the background to the first MoU. First, Mr Parmenter makes it plain (first witness statement, paragraphs 17 – 18) that it was not intended to have, and did not have, binding legal force. Secondly, Mr Parmenter also states (first witness statement paragraphs 19 – 20) that the first MoU was never intended to do more than regulate transfers between the three States’ armed forces during operations in Iraq. Next, the claimant’s solicitor, Mr Beagent, refers in his second witness statement (paragraph 10) to the announcement on 7 February 2002 by the President of the United States of the US government’s then view that the Geneva Conventions did not apply to the conflict with Al-Qaeda. As is well known, concerns were expressed in this country about the transfer of detainees to Guantanamo Bay. Cases of mistreatment of detainees in Afghanistan came to light in 2002. In paragraph 11 Mr Beagent says that the first MoU must be understood in this context; and “the true purpose appears to have been to ensure that the US government would comply with the Geneva Conventions in respect of UK captured detainees”.

Though Mr Parmenter (second witness statement paragraph 23) does not accept this latter statement, he also says this (paragraph 14):

“In light of the known US position on the application of the Geneva Conventions, it was considered politically important if possible to seek a commitment from the US about adherence to the Geneva Conventions’ standards (whilst recognising that they had taken a public position on the application of the Geneva Conventions in this context). It was therefore decided that [a MoU] should be drawn up between the UK and the US.”

Mr Parmenter describes (paragraph 22) further “key features” of the first MoU. One was that “[i]t allowed for the UK to retain full rights of access to any UK-detained [prisoners of war] transferred to the custody of the Accepting Power, and that the UK could request their return at any point”. Mr Parmenter adds (paragraph 23):

“The MOD did indeed wish to seek to retain some measure of influence over what happened to persons detained by UK forces and then transferred to the US.”

After June 2004 protracted negotiations were undertaken in order to secure a fresh MoU. That was not however achieved until October 2008, when a second MoU was concluded (but not signed by the British Secretary of State until 17 March 2009; it was not entered into by Australia). It is convenient at this stage (though there is more of the history to recite) to set out paragraph 4 of the second MoU. It differs from paragraph 4 of the first MoU, and the latter is not replicated in the second:

“At all times while transferred detainees are in the custody and control of US Forces, they will treat transferred detainees in accordance with applicable principles of international law, including humanitarian law. The transferred detainees will only be interrogated in accordance with US Department of Defense policies and procedures.”

There are important issues in the case as to the true legal and practical effect of the first MoU and the impact of the second. Mr Parmenter states (first witness statement paragraph 28) that the intention was that the second would replace and supersede the first.

Now I must return to 2004, when the claimant’s incarceration began. It was not at first appreciated by the British authorities that the US authorities had transferred the claimant to Afghanistan. On 9 September 2004 the then Minister for the Armed Forces gave a written answer to a Parliamentary Question which was (though not of course to his knowledge) untrue: he said that all persons apprehended in Iraq by UK forces and transferred to US forces remained in Iraq. This inaccuracy was at length corrected in a statement to the House of Commons made on 26 February 2009 by the Secretary of State for Defence. He acknowledged that two individuals (one of whom was the claimant), said to be members of a proscribed organisation with links to Al-Qaeda, had been moved to Iraq by the Americans in 2004. He said that officials had been aware of the transfer in 2004 and “in retrospect, it is clear to me that the transfer to Afghanistan of these two individuals should have been questioned at the time”. However it became apparent that British officials did not learn of the claimant’s transfer until after it had taken place. In a Parliamentary Written Answer on 6 July 2009 the then Secretary of State for Defence indicated that British officials became aware of the intention to transfer in March 2004, some days after the claimant’s initial capture. They had learned by mid-June that the two individuals had been transferred to Afghanistan. Then on 20 October 2009 in a letter from the Treasury Solicitor to the claimant’s solicitors it was stated that UK officials became aware of the intention to transfer “about a month” after the two individuals’ delivery into US custody. The UK had not been formally consulted about the transfer: apparently the paperwork did not reveal the UK’s involvement in the original capture. This would appear to be a violation, albeit unintended, of paragraph 5 of the first MoU.

As I have said, in June 2010 a US Detainee Review Board determined that the claimant no longer posed a threat to security and decided that he should be released to Pakistan. However on 22 June 2011 (the day before the hearing in this court) the US Department of Defense supplied the British Embassy in Washington with a document which I should cite in full:

“Detainee is held by US forces pursuant to the Authorization to Use Military Force, as informed by the laws of war. Under this authority, US forces in Afghanistan detain, inter alia, persons who were part of, or substantially supported, Taliban or al-Qa’ida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy forces. The detainee has been determined to meet this criteria [sic] and remains under US control, subject to further reviews by a board of officers, empowered to direct his release should he be determined not to meet the standard for detention. This board will consider the detainee’s case at regular six month intervals for so long as the detainee remains in DoD custody. In addition to directing release for those detainees who do not meet the standard for detention, the review board may recommend alternative disposition options, including lawful transfer to the detainee’s home country for prosecution or participation in rehabilitation or reconciliation programs. Such recommendations are advisory only, and subject to other considerations including a prudential review [sc. of] the detainee’s background and terrorist or insurgent connections; of the security situation in the receiving country, including al-Qa’ida and Taliban and associated forces’ presence and activity; and the ability of the receiving country to lawfully and adequately mitigate the risk of the detainee if transferred.”

And so the claimant has remained at Bagram. The Secretary of State has not requested his release or return, under paragraph 4 of the first MoU or otherwise.

I should next give some account of the areas of law relevant to the case.

The ancient and celebrated writ of habeas corpus may be issued at the suit or on behalf of any prisoner unlawfully detained so as to bring him (originally, his actual person; now more often just the facts of the case) before the High Court, and his release ordered. It has 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” (Ex p. 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).The proper respondent to the writ is the party having custody, power or control of the prisoner. It is not a proper remedy against the party who originally confined the prisoner if he no longer has him in custody and lacks power and control over him: “the object of the writ is not to punish previous illegality, but to release from present illegal detention” (per Scrutton LJ in Ex p. O’Brien [1923] 2 KB 361, 391; compare Barnardo v Ford [1892] AC 326, at for example 333 per Lord Halsbury LC). However “actual physical custody is obviously not essential”, per Atkin LJ in O’Brien at 398).

In some circumstances the writ may issue even if the prisoner is detained out of the jurisdiction. In O’Brien the applicant was imprisoned at Mountjoy Gaol in Dublin in what was then the Irish Free State; in Mwenya the Court of Appeal held that a writ of habeas corpus might issue to Northern Rhodesia. I shall have more to say about both these cases. After the restoration of King Charles II prisoners were sent to Scotland or one of the Channel Islands in the hope of avoiding the reach of the King’s Bench. But the judges issued the writto gaolers in those territories: see Farbey and Sharpe, The Law of Habeas Corpus, 3^rd edn. 2011 (pp. 15 – 17). The Habeas Corpus Act 1679 was passed to cure a number of ills, one of which was “for preventing illegal imprisonments in prisons beyond the seas”. It prohibited the transmission of English subjects resident here to prisons in foreign jurisdictions. The common law, however, does not confine the benefit of the writ to British subjects.

The writ has been issued not only where it is shown that the prisoner is unlawfully held, and the respondent has custody, power or control over him, but also in order that the court may enquire into either or both of those issues. Indeed the writ’s use to investigate the legality of a detainee’s confinement may be said to be its paradigm feature; and is much emphasised in earlier descriptions of habeas corpus. Thus Blackstone states (Commentaries (1768) vol. III p. 131, cited by Lord Evershed in Mwenya at 292):

“[F]or the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted.”

In this case Miss Lieven QC for the claimant submits that the illegality of her client’s detention is made out; but the existence or degree of the Secretary of State’s control over the claimant, while the latter remains detained at Bagram Airbase, is yet to be established. She says – and this is at the centre of the claim – that this question can and should be tested by the issue of the writ, which in the circumstances would effectively require the Secretary of State to make a request of the US authorities for the claimant’s release or return. Miss Lieven submits there is good reason to suppose that the Americans would comply.

As I have shown, the first MoU was to be implemented (see paragraph 1) in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva III) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV). These provisions are important both for Miss Lieven’s argument that her client is unlawfully detained, and her submission that there is good reason to suppose that a request to the Americans for his release would be complied with. As for the legality of his detention, she says that the claimant has suffered violations of Article 118 of Geneva III (release and repatriation “without delay after the cessation of active hostilities”) if he is to be regarded as a prisoner of war to whom Geneva III applies, or Article 133 of Geneva IV (cessation of internment “as soon as possible after the close of hostilities”) if that is the applicable Convention. As for the likelihood of a favourable response to a request for his release, she points to the fact that both Conventions contain provisions requiring the Accepting Power to return the detainee to the Detaining Power in certain circumstances. Thus by Article 12 of Geneva III the Detaining Power is only to transfer a prisoner of war if satisfied that the transferee Power will apply the Convention, and is to request the prisoner’s return if that is not done; the request must be complied with. Article 45 of Geneva IV contains an effectively identical provision relating to civilian detainees.

S.1 of the Geneva Conventions Act 1957, to which Miss Lieven also made reference, criminalises “grave breach” of the Convention provisions.

One of the submissions advanced by Mr Eadie QC for the Secretary of State is that the claim invites the court to enter upon territory where it has repeatedly declined to tread, namely the executive’s conduct of relations with another sovereign State. Whether or not to make a request of the US authorities for the claimant’s release or return is precisely a decision taken, or to be taken, within that field. Mr Eadie cites in particular two authorities. They were, it should be noted, judicial review cases rather than applications for habeas corpus. Both concerned detainees at Guantanamo Bay. The first is Abbasi [2002] EWCA Civ 1598. The appellant was a British national. He had been held captive at Guantanamo Bay for eight months without access to any tribunal or a lawyer. His mother brought proceedings seeking to compel the Foreign Office to make representations to the US government or take other appropriate action. Lord Phillips MR, as he then was, gave what I might with respect describe as a vivid account of the prestige and importance of the writ of habeas corpus at paragraphs 59 – 63 and at paragraph 64 continued:

“For these reasons we do not find it possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a ‘legal black-hole’.

...

66.

What appears to us to be objectionable is that Mr Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. It is important to record that the position may change when the appellate courts in the United States consider the matter. The question for us is what attitude should the courts in England take pending review by the appellate courts in the United States, to a detention of a British Citizen the legality of which rests (so the decisions of the United States Courts so far suggest) solely on the dictate of the United States Government, and, unlike that of United States’ citizens, is said to be immune from review in any court or independent forum.”

The court proceeded to hold (paragraphs 68 – 79) that neither customary international law nor the European Convention on Human Rights afforded any basis on which to hold that the Secretary of State owed an enforceable duty to take diplomatic action on Mr Abbasi’s behalf. But that was not quite the end of the matter. In light of past government practice and earlier policy statements, the court held (paragraph 99) that a person in Mr Abbasi’s position enjoyed a limited legitimate expectation that any request by him for diplomatic action would be “considered” by the Secretary of State, “and that in that consideration all relevant factors will be thrown into the balance”. Summarising the court’s conclusions at paragraph 106 Lord Phillips stated:

“iii.

... [T]he Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens... The expectations are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation; but the court cannot enter the forbidden areas, including decisions affecting foreign policy.

iv.

It is highly likely that any decision of the Foreign and Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country’s foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area.

v.

The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.”

The second case on this topic is Al-Rawi [2008] QB 289. The first three appellants were detained at Guantanamo Bay. The others were members of their families. They sought judicial review of the Secretary of State’s refusal to make representations to the US authorities requesting release. There were arguments advanced which were not canvassed or not available in Abbasi, but there was plainly a considerable overlap between the two cases. Giving the judgment of the court I said:

“131.

In our judgment the appellants’ submissions on this part of the case fall foul of two principles. First, they invite the court to enter into what in Abbasi was described as a ‘forbidden area’ that is, the conduct of foreign relations...

134.

In this context we should recall a particular submission made by Mr Rabinder Singh, to the effect that a proper approach for the first respondent to take would have been first to request the Americans to release the detainee claimants, and then to enter into discussions about appropriate security arrangements. Presumably the suggestion is that the court should declare that the first respondent was so obliged. But that invites the court to take control of policy in this area. If the suggestion is only that the first respondent should have considered taking such a course, that invites the court to tell the first respondent how, in practical terms, she should think about her responsibilities. We are afraid we consider that these positions represent an outlandish view of the relation between judiciary and executive.”

Mr Eadie submits that the present claim invites the court into the same “forbidden area”.

It is important to have in mind that Abbasi and Al-Rawi were as I have said applications for judicial review. There was as I understand it no suggestion in either case that a writ of habeas corpus might issue.I should make it clear, however, that if in the present case I were to conclude that the Secretary of State was properly amenable to the writ, I would not withhold it on any grounds concerned with diplomatic relations. Nothing in Abbasi or Al-Rawi requires or commends such a course. The true question is whether on the facts the Secretary of State is properly amenable to the writ.

As I have indicated Miss Lieven submitted that the illegality of her client’s detention is made out; but the existence or degree of the Secretary of State’s control over the claimant is yet to be ascertained, and the writ should issue so that that might be done. Mr Eadie declined to join issue as to the legality of the claimant’s detention. Not least given Lord Phillips’ strictures in Abbasi (at paragraphs 64 and 66, set out above) that is not I think surprising. However I was at first troubled by the position taken by Mr Eadie, since if the court should favour Miss Lieven’s argument as to the existence or degree of the Secretary of State’s control over the claimant, it seemed to me that we should have to confront the legality of the detention; but that would or might draw the court into a consideration of the United States’ position in the matter. As it is, however, the case in my judgment is concluded against the claimant on the control issue, for reasons I shall of course explain.

I turn then to Miss Lieven’s argument on that question. She acknowledges that the effect of the writ’s issue would in the circumstances be to require the Secretary of State to make a request of the US authorities for the claimant’s release or return.

This central part of the case requires us to consider the use of habeas corpus as a vehicle for enquiry. I have already stated that enquiry into the legality of a claimant’s detention is a paradigm of the writ’s use, reflected in Blackstone’s observation (cited above at paragraph 13) that “the King is... entitled to have an account why the liberty of any of his subjects is restrained” (my emphasis). But its use to enquire into the power and control over the detainee said to be enjoyed by the prospective respondent is also by no means unknown. The case of O’Brien, to which I have referred and must return, is the leading instance in relatively recent times. In that case the Court of Appeal relied on earlier authority of their Lordships’ Housein Barnardo v Ford [1892] AC 326, which I have also mentioned. I should consider that case first.

A mother sought the issue of a writ of habeas corpus in respect of her son, directed to Dr Barnardo in whose institution the child had been placed. It appeared however that he had handed over the child to another person to be taken to Canada; and he alleged that he did not know where the boy (or the other person) was. The Court of Appeal affirmed an order of the Queen’s Bench Division that the writ should issue. The House of Lords dismissed Dr Barnardo’s appeal. Lord Herschell said this at 339 – 340:

“If... it had been an admitted fact that before notice of the application for the writ the appellant had ceased to have the custody of or any control over the boy alleged to be detained, that might have been ground for reversing the order of the Queen’s Bench Division. But where the Court entertains a doubt whether this be the fact, it is unquestionably entitled to use the pressure of the writ to test the truth of the allegation, and to require a return to be made to it. Now, it is impossible to read the judgment of the Lord Chief Justice without seeing that he did entertain such a doubt, and that he was not prepared upon the affidavits to accept as conclusive the statements of the appellant... I must not be understood as indicating that I think the story told by the appellant is untrue. But, as the matter is to undergo further investigation, it would obviously be improper to enter upon any discussion of the statements contained in the affidavits, or to express any opinion upon them.”

Their other Lordships agreed.

In O’Brien the appellant was detained by the Secretary of State purportedly pursuant to a regulation made under the Restoration of Order in Ireland Act 1920. Having been arrested in London he was conveyed to Dublin where he was confined in Mountjoy Prison. The Divisional Court refused his application for a writ of habeas corpus. The Court of Appeal held that the regulation under which his detention was ordered was inconsistent with and impliedly repealed by the Irish Free State Constitution Act 1922; so the order for his detention was unlawful. But the question remained whether the Secretary of State continued to have power and control over the appellant. In the House of Commons the Secretary of State had stated, “In my opinion the Government has not lost control” and “I maintain that with those undertakings given to me by the Free State Government, we have a complete control over the position in which the internees are placed”. However the Attorney General submitted to the Court of Appeal that “the Home Secretary had no power to release the prisoner”, and it was stated on affidavit that the appellant was “in the custody or control of an Irish official who is not subject to the orders or direction of the Home Secretary or the British Government” (per Scrutton LJ at 392). Their Lordships concluded (Bankes LJ at 381, Scrutton LJ at 392, Atkin LJ at 398-399) that there was doubt as to the extent to which, if at all, the body of the appellant was under the control of the Secretary of State. In ordering the writ to issue to “give the Home Secretary the opportunity... of making the position clearer than at present it appears to be” (per Bankes LJ at 381) all three members of the court relied on Barnardo v Ford. Thus Atkin LJ stated at 399:

“There is, to say the least, grave doubt whether [the appellant] is not still in the custody or control of the Home Secretary. The case of Barnardo v Ford appears to me to afford ample ground for the conclusion that this Court should order the writ to go addressed to the Home Secretary in order that he may deal fully with the matter, and if he has in fact parted with control show fully how that has come about.”

Miss Lieven also relies on Hicks v Attorney General [2007] FCA 299, a judgment of Tamberlin J in the Federal Court of Australia given on the Attorney’s application to strike out Mr Hicks’ claims for relief by way of orders of habeas corpus and judicial review. Mr Hicks was an Australian national who had been held at Guantanamo Bay for more than five years. He issued proceedings seeking orders of habeas corpus and judicial review in order to challenge the decision of the Australian government respondents not to request his release and return to Australia. (Thus the case has an obvious affinity with Abbasi.) The respondents moved to strike out the claim as having no reasonable prospect of success. They relied on the doctrine of Act of State “which, in broad terms, requires a court of one nation to abstain from hearing proceedings which might require it to pass judgment on the legality of acts of a foreign sovereign government” (Tamberlin J, paragraph 5). They asserted also that the claim “impacts on or relates to the area of foreign relations and gives rise to non-justiciable questions...” (ibid.). After some discussion of authority Tamberlin J held (paragraph 34) that neither Act of State, nor the related doctrine of non-justiciability, justified summary judgment in the respondents’ favour. He proceeded to consider the relevant learning on habeas corpus, notably O’Brien, and also the decision of the Court of Appeal here in Sankoh [2000] EWCA Civ 386, in which I had said that on the facts there was not a “whisper of an objective basis” for the suggestion that the Secretary of State had any power or control over the appellant. At paragraph 49 Tamberlin J said this:

“The respondents submit that persuasion or power to make a request falls far short of, and can never amount to, control. However, unlike Sankoh, in the present case the location of Mr Hicks is known, and given that the pleading alleges that there is not only control but also that a request by the Australian government would be granted, the case for Mr Hicks is that the respondents retain more than an ability to simply persuade the United States government. Mr Hicks submitted that he should be permitted to lead and test evidence regarding control to determine whether there is the requisite degree of co-operation and control on the part of the Australian government in relation to his internment by the United States authorities. It should be noted that Mr Hicks does not contend that the Court should dictate to the executive what should be done in the course of executing foreign policy.” (Tamberlin J’s emphasis)

And so Tamberlin J held that on the question whether an order of habeas corpus should be made in order to test the Australian government’s degree of control over the applicant, the respondents were not entitled to summary judgment.

Founding on Barnardo v Ford, O’Brien and Hicks Miss Lieven submits in short that this is a proper case for the issue of a writ of habeas corpus in order to test the degree of control enjoyed by the Secretary of State over the claimant. She submits further that given especially the terms of the first MoU and the impact of the Geneva Conventions, there is a high likelihood that the United States government would comply with a request to release or return the claimant.

It is important to have in mind that in both Barnardo and O’Brien the state of the evidence left the court in doubt as to the existence or extent of control enjoyed by the prospective respondent over the detained person, and the writ was issued to resolve the doubt. Thus in O’Brien there was contradictory or inconsistent material before the Court of Appeal, which was accordingly concerned that the Secretary of State should provide clear evidence as to the nature of the arrangements made with officials of the Irish Free State; without that the court could not determine whether or nothe had control over the appellant. The court did not hold that the possibility that under agreed arrangements the Irish authorities might accede to a request for the appellant’s return demonstrated that the Secretary of State possessed sufficient control to justify the issue of the writ. They held that the writ’s issue was justified as a means of ascertaining what the arrangements were; this was a proper use of “the pressure of the writ”, in Lord Herschell’s phrase in Barnardo.

Accordingly, in my judgment, neither Barnardo nor O’Brien is authority for the proposition that sufficient control is shown for the purposes of habeas corpus by the possibility of a successful request by the prospective respondent to a third party for the detainee’s release or delivery. There is a plain distinction between a case where the evidence as to the arrangements between the respondent and the third party is unclear, and a case where the arrangements are perfectly clear but they allow or contemplate no more than the making of a request to the third party which might or might not be acceded to. Other things being equal the writ of habeas corpus may issue in the first case, because further enquiry is justified. In the second it may not, because no further enquiry is necessary and on the evidence the prospective respondent does not have power or control over the prisoner. I acknowledge that the decision in Hicks implies that a different view might be taken. However, as I have said that was an application to strike out the claim; Tamberlin J did not distinctly hold that the power to make a request, with no certainty of result, would constitute sufficient control for the writ to go.

I consider, then, that the requirement of power or control means what it says. After all enquiries are complete, the respondent must be shown to enjoy an actual power to deliver the prisoner. In O’Brien Atkin LJ said at 398 that “[i]n testing the liability of the respondent the question is as to de facto control”. With great respect that is no doubt right. Thus, as Mr Eadie accepted in the course of argument, there might be sufficient control if it were demonstrated that the relationship between the respondent to the writ and the actual custodian were such that a request by the former for the prisoner’s delivery by the latter would plainly be acceded to. De facto or de jure, however, the respondent’s power must be actually to deliver the prisoner, or in effect direct his delivery.

I consider that this position is supported by the decision of the Court of Appeal in Mwenya. The question was whether the writ of habeas corpus might issue to custodians in Northern Rhodesia, which was described in an affidavit by the Secretary of State as “a foreign country within which Her Majesty has power and jurisdiction by treaty, grant, usage, sufferance and other lawful means within the meaning of the Foreign Jurisdiction Act, 1890, but not recognised by Her Majesty as, nor is it, part of Her dominions, but She has power and jurisdiction within the same”. The Divisional Court held there was no jurisdiction to issue the writ. The Court of Appeal allowed the detainee’s appeal. Lord Evershed MR cited much learning, and concluded at 303:

“... I do not attempt anything in the way of definition which would or might provide the answer to other cases, beyond saying that the jurisdiction ought not to be limited to territories, outside England, which are strictly labelled ‘colonies or foreign dominions’, but will extend to territories which, having regard to the extent of the dominion in fact exercised, can be said to be ‘under the subjection of the Crown’ and in which the issue of a writ will be regarded (in Lord Mansfield’s words) as ‘proper and efficient’.”

Romer LJ said this at 305 – 306:

“... [T]he object, for relevant purposes, of the writ of habeas corpus is that the sovereign should be informed why any of her subjects are imprisoned and be satisfied as to the validity of their detention. The machinery provided by the writ for obtaining this information would obviously be ineffective in relation to any territory in which the Crown had to no extent displaced the sovereign power; and because of this, and also because of the comity of nations, the writ would not issue into, for example, the United States of America for the purpose of inquiring into the detention of a British subject who is imprisoned there. But in territory in which the Crown, on the advice of Parliament, has assumed such a degree of power and control that the protected State is to all intents and purposes a British possession and in which the writ, if issued, would certainly be effective in its results, it is difficult to see why the sovereign should be deprived of her right to be informed through her High Court of the detention of her subjects in that territory... The question whether the writ can issue [depends] on the propriety and effectiveness of issuing it.”

At 307 Sellers LJ said:

“There would be much force in an argument which set up and established the impossibility of enforcing an ensuing order of a court of this country, as in the case of a detention in a foreign country which was sovereign and independent, and over which our country had no jurisdiction or control, or in which our powers and activities were so limited and restricted that there would be conflict and confusion, if not open hostility, with the internal government of the territory in question if the order were sought to be enforced.”

The reasoning of the Court of Appeal in Mwenya shows that the factor which restrains the issue of the writ to a land beyond the seas is not any formal rule as to the territory’s status, but the presence or absence there of a power of control in the Crown. In Lord Mansfield’s words the issue of the writ must be “proper and efficient” (the reference seems to be to R v Cowle (1759) 2 Burr 834). Its propriety and efficiency must surely depend on the respondent’s power, as it were without let or hindrance, to deliver the detainee in or from the foreign territory. Mwenya shows also, albeit implicitly, that the proper issue of the writ will not inhibit or embarrass the conduct of foreign relations; for if the necessary power is in truth gathered in the hands of the Crown, its exercise would not be constrained by diplomacy. There is accordingly no conflict between the amplitude of the writ of habeas corpus and the “forbidden area” of Abbasi and Al-Rawi.

In the present case it is plainly not suggested that the writ should issue to Afghanistan. But that, of course, is where the claimant is, and he remains in the hands of the Americans. As I have made clear, the case advanced is that “the pressure of the writ” be deployed, not to test the truth of evidence adduced on behalf of the Secretary of State or to elicit further evidence, but to require a request for the claimant’s release to be made to the American authorities, and to test their response. Now, we have full evidence of what the arrangements with the Americans were. The case is therefore quite unlike Barnardo or O’Brien. Those arrangements do not, in my judgment, establish power and control in the hands of the Secretary of State such that the issue of the writ would be “proper and efficient”. Far from it. First, he has no legal power to direct the claimant’s release. The MoUs did not create legally binding rights or obligations; and even if they had, they would have sounded on the international plane only. Secondly, the scope of the first MoU, both as to time and subject-matter, is to say the least problematic. Thirdly, the Geneva Conventions do not advance the matter. Their only domestic legal effect is the criminalisation of grave breaches. That cannot support Miss Lieven’s application for the issue of a writ of habeas corpus. Fourthly, it is very far from clear that the American authorities would accede to a request from the Secretary of State for the claimant’s release. No such likelihood is entailed by the Geneva Conventions. The statement supplied by the US Department of Defense to the British Embassy on 22 June 2011, which asserts that the claimant “remains under US control, subject to further reviews by a board of officers...” might suggest (I make no finding) that they would not so release him.

Overall it is in my judgment impossible to say that the Secretary of State is in a position in effect to direct the claimant’s delivery. The claimant is not within his power or control. This case is beyond the amplitude of the writ of habeas corpus whose issue, accordingly, would not be proper or efficient. Rather it lies within the “forbidden area” of Abbasi and Al-Rawi.

In these circumstances, and for all the reasons I have given, I would dismiss this application.

Since I prepared this judgment in draft, the court has received a letter dated 15 July 2011 from the claimant’s counsel complaining that the Secretary of State has withheld information which is material to the proper resolution of the case. We invited and received a response from Mr Eadie, and a reply from Miss Lieven. It is unnecessary to travel into the detail. In large measure the complaint proceeds on the premise that the court should view the issue of control conformably with the claimant’s submissions, which I have rejected. In the circumstances this correspondence does not require any further action by the court, or reconsideration of the judgment.

I agree.