IN THE SUPREME COURT OF THE UNITED KINGDOM UKSC 2012/033
ON APPEAL FROM THE COURT OF APPEAL (CIVIL DIVISION)
B E T W E E N:
(1) SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
(2) SECRETARY OF STATE FOR DEFENCE Appellants -and-
YUNUS RAHMATULLAH Respondent -and-
JUSTICE Intervener
THE RESPONDENTS CASE
Introduction 1. The Respondent, a citizen of Pakistan, was detained by British forces in Iraq in February 2004. He was handed over to US forces: a) subject to the terms of Memoranda of Understanding; b) on the basis that the US would comply with its obligations under the Geneva Conventions; and Pursuant to the Memoranda and the Geneva Conventions the US had undertaken that it would return him to UK custody promptly upon request. 2. The Respondent was then unlawfully taken to Afghanistan. He is now detained at Bagram Air Force Base. In 2010, he was cleared for release by a US military Detainee Review Board on the basis that he is not an Enduring 2 Security Threat and his continued internment... is not necessary to mitigate the threat he poses. Nevertheless, he has not yet been released. 3. The Appellants do not dispute that the Respondents detention is unlawful. He has now been detained without charge or trial for over 8 years. For 6 years of that period, the Respondent was held incommunicado. 4. On 14 December 2011, the Court of Appeal issued the writ of habeas corpus (the First J udgment: [2011] EWCA Civ 1540). 5. Following a hearing on 20 February 2012, the Court held that the Secretaries of State had made a sufficient return to the writ (the Second J udgment: [2012] EWCA Civ 182). 6. The basic issue can be shortly stated. Have the Appellants effectively wash[ed their] hands of any obligation to the Respondent and sold the pass with regard to their ability to protect him in the future (First J udgment at [38], Second J udgment at [16] per Lord Neuberger MR)? 7. The Court of Appeal granted the Appellants leave to appeal against the First J udgment on 21 December 2011. The appeal raises five agreed issues: a) the proper scope of the concept of control within the habeas corpus jurisdiction; b) the correct approach to the doubtful control line of authority; c) the relevance (if any) of the forbidden non-justiciable territory of foreign relations; d) the implications (if any) of the Act of State doctrine; and e) whether the proper test of control in habeas proceedings was met in this case. 8. These issues are considered in turn below (the fifth is considered alongside the first four). The Respondents case is, in summary: 3 a) The Court of Appeal was correct to hold that the Appellants exercised sufficient control over the Respondent, because the UK was entitled to request his return, and the US had undertaken to comply with such a request, pursuant to the Geneva Conventions relating to prisoners of war (Geneva III) or civilians (Geneva IV) and/or the 2003 MoU and/or the 2008 MoU. b) Alternatively, if there is any doubt over the meaning or effect of the Geneva Conventions or the MoUs, or any doubt over whether the US would comply with its undertakings, the Court of Appeal was correct to issue the writ to test the Appellants true degree of control over the Respondent. c) Both the Divisional Court and the Court of Appeal correctly held that, where there is sufficient control (or sufficient doubt) to justify the issue of a writ of habeas corpus, the writ will not be defeated by considerations of foreign relations or the Act of State doctrine. 9. The Supreme Court granted Mr Rahmatullah leave to appeal against the Second J udgment on 31 May 2012. Both appeals are to be heard together and both are addressed in this case. For consistency, the Secretaries of State are referred to throughout as the Appellants, and Mr Rahmatullah as the Respondent. 10. In relation to the Second J udgment, the Respondents case is, in summary: a) The Court of Appeal was wrong to hold that the doubt over the Appellants degree of control had been resolved. Rather, the evidence demonstrated that the US had neither refused to return the Respondent nor contended that it was not obliged to return him. b) The Court of Appeal was wrong to consider that foreign relations were relevant to the issues arising on the return, when they had not been relevant to the initial decision to issue the writ. 4 11. The appeal against the Second J udgment is the only issue that directly concerns Mr Rahmatullah. The appeal against the grant of the writ does not prevent the writ running, or Mr Rahmatullahs right to be discharged pursuant to the writ (section 15(4) of the Administration of J ustice Act 1960).
Factual Background Summary 12. The Respondent was detained by UK forces in Iraq in February 2004 and handed over to US forces pursuant to the 2003 MoU. He was then transferred by US forces from Iraq to Afghanistan. He has been held at Bagram Air Base in Afghanistan since about J une 2004. At Bagram he is known as Salah Mohammed Ali and has been given a Bagram Internment Serial Number of 1433. UK officials knew of the proposed transfer before it took place, but took no steps to prevent it. It is common ground that the transfer should have been questioned at the time but was not (Secretary of State for Defence, Hansard, 26 February 2009, Col. 394). 13. The Respondent has now been in continuous detention without charge or trial for over 8 years. His physical and mental state is reported to be very poor. He was held incommunicado for 6 years and has only recently made telephone contact with his family. 14. The Respondent is not able to give direct instructions to lawyers. The application for the writ of habeas corpus was therefore brought on the instructions of Mr Mounir Ahmed, his first cousin, with the Respondents consent. 15. The allegation that the Respondent is or has been a member of Lashkar e Tayyiba, made by the Secretary of State to Parliament and repeated without any supporting evidence in the Appellants Case, is denied.
The detention and transfer 5 16. On 9 September 2004, the then Minster for the Armed Forces, Mr Adam Ingram MP, gave a written answer to a parliamentary question in which he said: All persons apprehended by the United Kingdom Forces in Iraq and transferred to United States forces, and who are still in custody, remain in Iraq. 17. This statement was untrue. The error was not corrected until 26 February 2009 when Mr Hutton MP, then Secretary of State for Defence, made a statement to Parliament in which he described the capture and transfer of two individuals, one of whom is the Appellant. Mr Hutton MP said: [I]n February 2004 two individuals were captured by UK forces in Iraq. They were transferred to US detention, in accordance with normal practice, and then moved subsequently to a US detention facility in Afghanistan. Following consultations with US authorities, we confirmed that they transferred these two individuals from Iraq to Afghanistan in 2004. They remain in US custody there. I regret that it is now clear that inaccurate information on this particular issue has been given to the House by my Department on a small number of occasions. The individuals transferred to Afghanistan are members of Lashkar e Tayyiba, a proscribed organisation with links to al-Qaeda. The US Government has explained to us that they were moved to Afghanistan because of a lack of relevant linguists necessary to interrogate them effectively in Iraq. The US has categorised them as unlawful enemy combatants, and continues to review their status on a regular basis. We have been assured that the detainees are held in a humane, safe and secure environment meeting international standards consistent with cultural and religious norms. The ICRC has had regular access to the detainees. The review has established that officials were aware of this transfer in 2004. In retrospect, it is clear to me that the transfer to Afghanistan of these two individuals should have been questioned at the time (emphasis added). 18. In a parliamentary written answer on 6 J uly 2009, Mr Ainsworth MP, the then Secretary of State for Defence, responded to a question seeking further information about these two individuals and the circumstances of their detention. He said: It is not the practice of this Department to release personal information, such as the names of these two individuals. The individuals were initially held at a US detention facility in Baghdad before they were transferred to US detention facilities at Bagram Air Base in Afghanistan. 6 The review examined the available historical records, which suggest that British officials became aware of an intention to transfer in March 2004, although this was some days after the initial capture had occurred. British officials had learned by mid-J une 2004 that the individuals had been transferred to Afghanistan. 19. Further information about the circumstances of the detention and transfer was provided in correspondence from the Treasury Solicitor dated 20 October 2009 1 : The two individuals were transferred to US forces custody immediately after the operation in accordance with the memorandum of understanding (the MOU) between the US, the UK and Australia applicable at the relevant time About a month later UK officials became aware of US intentions to transfer the two individuals to Afghanistan. However, the UK was not formally consulted about the proposed transfer, as required by the MOU. From subsequent exchanges with US authorities this appears to have been because the US paperwork on the transfer did not indicate UK involvement in the initial capture (emphasis added). 20. Further information about the circumstances of the Respondents detention and transfer came to light as a result of a written answer from the Secretary of State which was published in Hansard on 13 J uly 2011, after oral submissions before the Divisional Court, but before judgment. The written answer states: They were captured by UK forces in and around Baghdad in February 2004 and immediately transferred to US forces in Iraq The individuals were then held in US detention at Balad and subsequently transferred to a US detention facility in Afghanistan by August 2004. UK forces did not undertake an assessment of whether or not the individuals were prisoners of war because they were immediately transferred to US forces for detention. As part of the review of the case completed by officials between late 2008 and early 2009, the Ministry of Defence (MOD) considered the status of the detainees and determined that, as there was no information to suggest that they were members of the armed forces of Iraq, they would not have been prisoners of war. They may have been protected persons under the Geneva conventions, subject to certain criteria being satisfied.
1 That correspondence concerned a separate action in the Administrative Court for disclosure for the purpose of assisting the Respondents case before the Detainee Review Board. After the Secretary of State had served Summary Grounds resisting the claim, but before the determination of permission, it became clear that the DRB had already taken place and had concluded in the Respondents favour. That claim therefore became unnecessary and was withdrawn by consent on the basis that there be no order as to costs. 7 21. To summarise: a) the Respondent was captured by UK forces in Iraq in February 2004; b) contrary to the requirements of the 2003 MoU, the UK did not categorise him as a prisoner or war or a civilian; c) he was transferred to US custody pursuant to the 2003 MoU; d) he was then detained by the US in Iraq; e) the UK became aware that the US intended to transfer the Respondent to Afghanistan in March 2004 (some days after the initial capture, according to the Secretary of States written answer of 6 J uly 2009; or about a month after their transfer to US custody, according to the Treasury Solicitors letter of 20 October 2009); f) the USs intention to transfer the two individuals to Afghanistan should have been questioned [by the UK] at the time, by reason of the 2003 MoU, but was not; and g) it is unclear precisely when the Respondent was transferred to Afghanistan. In the written answer of 6 J uly 2009, the Secretary of State said, British officials had learned by mid-J une 2004 that the individuals had been transferred to Afghanistan. In the written answer of 13 J uly 2011, the Secretary of State said that they were transferred to Afghanistan by August 2004. (The Appellants Case states at paragraph 2.17 that the individuals were transferred to Afghanistan in March 2004: the Respondent assumes that to be an error.)
Memoranda of Understanding and Geneva Conventions 2003 MoU 22. The transfer of detainees from UK to US custody was governed by the 2003 MoU. The UK is the Detaining Power and the US is the Accepting Power under the MoU. The MoU contained the following provisions: 8 This arrangement establishes procedures in the event of the transfer from the custody of either the US, UK or Australian forces to the custody of any of the other parties, any Prisoners of War, Civilian Internees and Civilian Detainees taken during operations against Iraq. The Parties undertake as follows: 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 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 the rights and protections of the Convention even if transferred to the custody of an Accepting Power (emphasis added). 23. Article 1 of the 2003 MoU states that it will be implemented in accordance with [Geneva III] and [Geneva IV] as well as customary international law. It uses the language of the Geneva Conventions (prisoner of war, civilian internees), provides a procedure for the classification of detainees as prisoners of war or civilians and requires detainees to be given all the rights and protections of the Convention even if transferred to the custody of an Accepting Power. Accordingly, the 2003 MoU can only be understood in the context of Geneva III and Geneva IV, and the US Governments publicly stated position on those Conventions as at 2003. Geneva Conventions 24. Geneva III and Geneva IV provide for the main rights and obligations covered by the 2003 MoU, including Article 4. Both the UK and the USA are signatories to both Conventions. 9 25. Geneva III concerns the treatment of prisoners of war. Geneva IV concerns the protection of civilians in time of war. 26. If, as the Appellants contend, the Respondent is a civilian and Geneva IV applies to him, then the position under Geneva IV is as follows. 27. The Respondents transfer to Afghanistan was a breach of Article 49 of Geneva IV, which provides: Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. 28. His continued detention without trial despite the end of military operations, and despite being cleared for release in 2010, is a breach of Article 132: Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. 29. It is also a breach of Article 133: Internment shall cease as soon as possible after the close of hostilities. 30. By Article 6, the Respondent continues to benefit from Geneva IV notwithstanding the close of military operations in Iraq: protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by the present Convention. 31. Pursuant to Article 147, unlawful deportation or transfer or unlawful confinement of a protected person contrary to Article 49 is a grave breach of Geneva IV. The transfer of the Respondent from Iraq to Afghanistan was therefore a grave breach of Geneva IV. 32. Geneva IV also provides by Article 45 that, if protected persons are transferred by the Detaining Power to another power, then that other power must comply with a request by the Detaining Power for their return. 10 33. In light of the Appellants position that the Respondent is a civilian, it is not necessary to consider the position of prisoners of war under Geneva III concerning prisoners of war. However, in summary, if the Respondent is a prisoner of war then there has been a breach of Articles 84 and 118. By Article 12, the UK may request his return and the US must comply with that request. 34. The 2003 MoU would ordinarily have been unnecessary. The difficulty faced by the UK that led to the 2003 MoU is explained in Beagent 2: The prior background was that on 7 February 2002, the US President announced the US Governments then view that the Geneva Conventions did not apply to the conflict with Al- Qaeda [D18]. It subsequently became apparent to HM Government during 2002 that there had been several cases of mistreatment of detainees, particularly in Afghanistan [D19]. Further, during 2002, it had become public knowledge that the US Government was transporting detainees to Guantanamo Bay and the UK Government had publicly expressed concerns about this (whilst nevertheless carrying out interviews of detainees there) [D20]. Throughout this period, it remained UK government policy that the Geneva Conventions ought to be complied with by the US Government. 35. This is common ground. Parmenter 2 at paragraph 14 states: 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 of the application of the Geneva Conventions in this context). It was therefore decided that a memorandum of understanding (MOU) should be drawn up between the UK and the US. 36. The purpose of the 2003 MoU was to ensure that the US complied with the Geneva Conventions, at least in relation to detainees transferred from UK custody to US forces. One of the key features of the 2003 MoU was that it allowed for the UK to retain full rights of access to any UK-detained persons transferred to the custody of the Accepting Power, and that the UK could request their return at any point. The UK was solely responsible for the conduct of any tribunals to determine the status of personnel detained by the UK (Parmenter 2, para. 22). Article 4 of the 2003 MoU also provided that a request for the return of a detainee will be met, without delay. 11 37. Mr Parmenter accepts that 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 (Parmenter 2, para. 23). 38. The 2003 MoU was motivated not merely out of concern that the UK complied with its obligations under international law. A grave breach of the Geneva Conventions is a domestic criminal offence. Section 1 of the Geneva Conventions Act 1957 provides: Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence. 39. It was essential for the Appellants to be sure that the US would comply with the Geneva Conventions in respect of prisoners transferred to US custody. Otherwise, transfers of detainees to US custody would risk being a grave breach of the Geneva Conventions and a domestic criminal offence would be committed. In particular, the UK needed to ensure that when detainees were transferred, they would be returned to UK custody upon request (Article 4 of the 2003 MoU and Article 45 of Geneva IV) and would not be transferred out of Iraq (Article 5 of the 2003 MoU and Article 49 of Geneva IV). The 2003 MoU was designed to achieve these objects. 2008 MoU 40. A further MoU was negotiated over a long period between 2005-2008. US Defense Secretary Robert Gates signed the 2008 MoU on 18 October 2008. However, Mr Hutton MP did not sign it until 17 March 2009 (i.e. 3 weeks after his statement to Parliament about the Respondent). The 2008 MoU is stated to come into effect upon the date of signature (Article 11). 41. Article 4 in the 2008 MoU is differently worded: 4. At all times while transferred detainees are in the custody and control of U.S. Forces, they will treat transferred detainees in accordance with applicable principles of international law, including humanitarian law. The transferred detainees will only be interrogated 12 in accordance with U.S. Department of Defense policies and procedures (emphasis added). 42. The 2008 MoU was the product of several rounds of negotiation over a period of years. In its final form, Article 4 provides that transferred detainees are to be treated in accordance with applicable principles of international law, including humanitarian law. The draft versions of the MoU contained various formulations negotiated over several years: will upon request and without delay return any security internee or criminal suspect transferred to it by the other Participant (J anuary 2005 draft, Parmenter 2, para. 34) the receiving Participant will at the request of the other Participant return without delay any security internee transferred temporarily to its custody (early 2006 draft, Parmenter, para. 35) applicable principles of international humanitarian law and international human rights law, including common Article 3 to the Geneva Conventions (version 4) applicable principles of international humanitarian law and international human rights law (versions 5 and 7) applicable principles of international law, including humanitarian law (version 6 and final version) 43. Mr Parmenter explains that: MOD and FCO were satisfied that provision for treatment in accordance with applicable principles of international humanitarian law and international human rights law were sufficient to meet appropriate legal and policy requirements (Parmenter 2, para. 39). 44. Mr Parmenter has misquoted the final version of the MoU, which does not contain any reference to international human rights law but only to international law. However, the point is clear the language changed but the content of the undertaking did not. The US was agreeing to comply with appropriate legal and policy requirements. The relevant legal requirements of international humanitarian law must include the Geneva Conventions. 45. The 2008 MoU therefore maintained the US Governments 2003 undertaking that it would comply with the Geneva Conventions. It was couched in 13 appropriate diplomatic code, but the effect was the same. Having ensured in the 2003 MoU that the Geneva Conventions would be complied with, that undertaking was not abandoned in 2008.
Detainee Review Board 46. On 5 J une 2010, the US military held a Detainee Review Board hearing at Bagram for the Respondent. The purpose of the hearing was to determine whether it remained necessary to detain the Respondent. The DRB concluded that the Respondents continued internment was no longer justified: b. The continued interment of Salah Mohammed Ali (ISN 1433) is not necessary to mitigate the threat he poses. c. Salah Mohammed Ali (ISN 1433) should be transferred to Pakistan for release.
e. Salah Mohammed Ali (ISN 1433) is not an Enduring Security Threat. 47. On 15 J une 2010 Brigadier General Mark S. Martins of the US Army approved the decision of the DRB. Nevertheless, the Respondent has not yet been released. The reasons for this are unclear. 2
Department of Defense text 48. On 22 J une 2011, the US Department of Defense provided the UK with the following text by way of further information (Wickremasinghe 2, paragraph 3): 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,
2 There are some indications in the documents for the June 2010 DRB that there was an earlier DRB in February 2010 in which the Respondent was also cleared for release. However, the documents for that DRB have not been disclosed. 14 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 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 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.
This text is silent on the MoUs; the US understanding of its obligations under the Geneva Conventions; and (crucially) whether the Respondent would be returned to UK custody upon request made pursuant to the MoUs or the Geneva Conventions.
The writ and the return 49. The Court of Appeal issued the writ on 14 December 2011, with a return date of 21 December 2011. The return date was enlarged on two occasions, until 20 February 2012. 50. The First Appellants return consisted of a witness statement from Tom Drew dated 13 February 2012, which was adopted on behalf of the Second Appellant by a witness statement of Paul Vincent Devine dated 14 February 2012. 51. Exhibited to Mr Drews statement were (among other things): 15 a) A letter from the Foreign and Commonwealth Office dated 16 December 2011 requesting the Respondents transfer to UK custody in order for him to be released; and b) A response dated 1 February 2012 from Mr Lietzau, the USs Deputy Assistance Secretary of Defense for Rule of Law and Detainee Policy. 52. Mr Lietzaus letter stated that: Rahmatullah has been identified by a DRB as someone who could be transferred under appropriate circumstances. The board in this case, based on the information available to it, made a finding that the threat Rahmatullah posed could be mitigated if he was transferred to Pakistan with appropriate security assurances. This recommendation is but one component of a transfer process. Before we transfer third- country nationals from U.S. custody at the DFIP [Detention Facility in Parwan], we independently determine using information the DRB relied upon as well as relevant information not necessarily available to the Board whether any threat posed by the detainee can be adequately mitigated by the receiving country. Accordingly, we seek appropriate security assurances when we transfer a detainee who is being detained pursuant to the AUMF [Authorization for Use of Military Force against Al Qaida], as informed by the laws of war, regardless of whether the transfer is to be to the detainees home country or to a third country. Generally, these security assurances commit the receiving country to take measures that are necessary, appropriate, and lawfully available, to ensure that the detainee will not pose a threat to the receiving country or to the United States. In addition to security assurances, we seek humane treatment assurances in order to ensure that, upon transfer, the detainee will be treated humanely, consistent with applicable international law. Normally, unless there is an obstacle to repatriation, transfer discussions in circumstances such as these would involve the detainees home country. We have already received a request from the Government of Pakistan for Rahmatullahs repatriation, and we believe it may be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan. I look forward to discussing this matter further with you. 53. Mr Drews witness statement stated at paragraph 15: The US authorities, in suitably diplomatic language, have effectively declined the Respondents request that the 16 Appellant be transferred to UK custody in order that he be released. 54. Similarly at paragraph 19: I should add that we are clear that the letter is a definitive statement of the US position, which sets out their views clearly and, we believe, is the result of careful consideration over a number of weeks. 55. Mr Drew later provided a second witness statement dated 17 February 2012. In that statement, Mr Drew described at paragraph 6 a meeting on 24 J anuary 2012 between Mr Lietzau and a UK official: The meeting had been arranged to discuss matters unrelated to YR. However, that morning the Washington Post had published an article relating to YR and, at the very end of the meeting, Mr Lietzau referred briefly to the article. He remarked informally that the US was considering how to respond to the UKs letter of 16 December 2011 and mentioned, in the context of the press article, that the response might describe the procedures the US authorities would need to go through with the UK to determine if release of YR were appropriate, and invite us to begin a dialogue. 56. The Court of Appeal held in the Second J udgment that the return was sufficient, and discharged the writ.
Habeas corpus: The English authorities Background 57. Blackstone described the writ of habeas corpus ad subjiciendum as follows: [T]he great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; []. This is a high prerogative writ, [] running into all parts of the kings dominions: for the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted. 3
3 William Blackstone, Commentaries on the Laws of England (1765), Chicago: University of Chicago Press, 1979, vol. I, p. 131. 17 58. As Taylor LJ stated in R v Secretary of State for the Home Department, ex party Muboyayi [1992] Q.B. 244, at 269: The great writ of habeas corpus has over the centuries been a flexible remedy adaptable to changing circumstances. 59. In the Court of Appeal in the present case, Lord Neuberger MR summarised the authorities: 43. ... 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). 60. One problem which the law has long had to confront is where a detainee is sent out of the ordinary jurisdiction of the courts to a place where it is hoped that the writ of habeas corpus will not run. The common law has never responded favourably to such conduct. In the 1660s, after the restoration, the English practice was to send the prisoner to Scotland or one of the Channel Islands in the hope of evading the jurisdiction of the Court of Kings Bench. The Court nevertheless issued the writ to jailers in those territories. See Halliday Habeas Corpus: From England to Empire (2010) p. 240 and fn. 103- 104, Farbey & Sharpe The Law of Habeas Corpus 3 rd Ed. (2011) pp. 15-17 and J onathan Gaunt QC Charles II and Englands Guantanamo Bay (2011). Guantanamo Bay and Bagram are in many respects a more modern equivalent of these practices. 61. Parliament also responded by passing the Habeas Corpus Act 1679 (an Act for better securing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas). The Act remains in force. Section 11 (in its current, amended form) provides: And for preventing illegall Imprisonments in Prisons beyond the Seas noe Subject of this Realme that now is or hereafter shall be an Inhabitant of Resiant of this Kingdome of England 18 Dominion of Wales or Towne of Berwicke upon Tweede shall or may be sent Prisoner into Scotland Ireland J ersey Gaurnsey Tangeir or into any Parts Garrisons Islands or Places beyond the Seas which are or at any time hereafter [shall be] within or without the Dominions of His Majestie His Heires or Successors and that every such Imprisonment is hereby enacted and adjudged to be illegall the person or persons who shall knowingly frame contrive write seale or countersigne any Warrant for such Committment Detainer or Transportation or shall soe committ detaine imprison or transport any person or persons contrary to this Act or be any wayes adviseing aiding or assisting therein being lawfully convicted thereof shall be disabled from thenceforth to beare any Office of Trust or Proffitt within the said Realme of England Dominion of Wales or Towne of Berwicke upon Tweede or any of the Islands Territories or Dominions thereunto belonging and [be liable to imprisonment for life] and be incapeable of any Pardon from the King His Heires or Successors of the said . . . Disabilities or any of them. 62. Another problem long known to the law is the question of how far the courts should go in questioning the facts contained in a return to the writ. The common law position was uncertain. The position was clarified by the Habeas Corpus Act 1816, which provides by section 3: 3. J udges to inquire into the Truth of Facts contained in Return. In all cases provided for by this Act, although the return to any writ of habeas corpus shall be good and sufficient in law, it shall be lawful for the justice or baron, before whom such writ may be returnable, to proceed to examine into the truth of the facts set forth in such return by affidavit; and to do therein as to justice shall appertain; and if such writ shall be returned before any one of the said justices or barons, and it shall appear doubtful to him on such examination, whether the material facts set forth in the said return or any of them be true or not, in such case it shall and may be lawful for the said justice or baron to let to bail the said person so confined or restrained, upon his or her entering into a recognizance with one or more sureties, or in cases of infancy or coverture, or other disability, upon security by recognizance, in a reasonable sum, to appear in the court of which the said justice or baron shall be a justice or baron upon a day certain in the term following, and so from day to day as the court shall require, and to abide such order as the court shall make in and concerning the premises; and such justice or baron shall 19 transmit into the same court the said writ and return, together with such recognizance, affidavits; and thereupon it shall be lawful for the said court to proceed to examine into the truth of the facts set forth in the return, in a summary way by affidavit, and to order and determine touching the discharging, bailing, or remanding the party. 63. The burden of proving the facts on a return is on the respondent. Furthermore, as such cases involve issues of personal liberty, the degree of probability required will be high: R v Home Secretary, ex parte Khawaja [1984] AC 74 per Lord Fraser at 97G.
The Barnardo litigation 4
64. Several habeas corpus cases were brought against Dr Barnardo for removing children from their parents and sending them abroad. 65. The first case of note was brought by the mother of Martha Ann Tye. The child had been placed by agreement in one of Dr Barnardos homes for destitute children. When Marthas mother requested her return, she was handed over, without the mothers knowledge, to a Mme Gertrude Romand, who took her first to Europe and then to Canada. In the ensuing habeas corpus proceedings, Dr Barnardo insisted that he had parted with custody of the child and could not get her back. 66. The Court of Appeal held that to be an insufficient reason not to issue the writ (R v Barnardo (1889) 23 QBD 305 Tyes case)). Lindlay LJ summarised the Courts approach: Persons who illegally put a child out of their power do so at their own peril, and, if they are ordered to produce the child, no excuse founded on their own inability to comply with the order will be held a sufficient answer to the writ (ibid at 316). 67. The approach of the Court of Appeal in Tyes case was disapproved by the House of Lords in the case of Henry Gossage.
4 The Respondent is very grateful to Michael Lobban (Professor of Legal History at Queen Mary College, University of London) for his research on the history of the Barnardo litigation. 20 68. Gossage had been handed to Dr Barnardo on 25 September 1888 by the poor law authorities of Folkestone. Originally from Worcestershire, the boy had (according to Barnardo) been given by his drunken and dissolute mother to two organ grinders, in exchange for money. He had been found by a Rev. E. Husband, who had contacted Barnardo. The boy had entered Dr Barnardos home with the mothers consent. Two months later, on 10 November, Barnardo received a letter from a Mr Newdigate from Leamington, who had been contacted by the mother, who wanted the child to be put into a Catholic home. 69. On the same day that the letter was written, Dr Barnardo claimed to have first met William Norton, a Canadian, who had lost his son, and wanted another to adopt. On 16 November, Dr Barnardo entrusted the boy to the Canadian, who did not want to disclose his address, since (it was claimed) in Quebec (where he lived), it was common for birth parents to seek to obtain the return of their children. Dr Barnardo seemed to know very little of this man, having little more than a letter of recommendation from a Presbyterian minister, whose name Dr Barnardo could not recall. 70. The childs mother sought and obtained a writ of habeas corpus from the Queens Bench Division, which was upheld by the Court of Appeal ([1890] 24 QBD 283). Both courts followed the approach of the Court of Appeal in Martha Tyes case. Dr Barnardo appealed to the House of Lords (Barnardo v Ford [1892] AC 326). 71. Dr Barnardos appeal was unsuccessful because it transpired that the childs mother intended to raise further questions of evidence on the return to the writ, which she was entitled to do (Lord Halsbury at 332-333). However, the House of Lords also disapproved of the law stated in Tyes Case. Lord Halsbury stated at 333: [] I cannot acquiesce in the view that some of the learned judges below seem to have entertained, that if a Court is satisfied that illegal detention has ceased before application for the writ has been made, nevertheless the writ might issue in order to vindicate the authority of the Court against a person who has once, though not at the time of the issue of the 21 writ, unlawfully detained another or wrongfully parted with the custody of another. My Lords, this is a view that I cannot agree to. I think, under such circumstances, the writ ought not to issue at all, as it is not the appropriate procedure for punishing such conduct. Of course, where a counterfeited release has taken place, and a pretended ignorance of the place of custody or of the identity of the custodian is insisted on, a Court may and ought to examine into the facts by the writ of habeas corpus, because the detention is in fact being continued by someone who is really the agent of the original wrong-doer to continue and persist in the unlawful detention. 72. Lord Herschell stated at 339-340 (emphasis added): But the question remains whether, even assuming that the decision in Reg. v. Barnardo, Tye's Case was not well founded, the appellant is entitled to have the order that the writ should issue discharged. I have already given my reasons for thinking that this House cannot reject as incompetent an appeal against an order for the issue of a writ of habeas corpus; but I feel most strongly that such appeals are not to be encouraged. Where any tribunal believes that a person is or may be under detention in unlawful custody, and issues a writ of habeas corpus accordingly, no Court of Appeal ought lightly to interfere with the issue of the writ. The order for its issue ought only to be set aside if there be, beyond question, no ground for it. If, for example, in the present case 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, [i.e., whether custody or control has ceased prior to the application for issue of the writ] 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 J ustice 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. At your Lordships' bar the counsel for the respondent contended that they had a right to cross-examine the appellant, and that the proper occasion on which to try the question was when he had returned to the writ that he was not detaining the child, and that it was not, at the time the writ was issued, in his custody, power, or control. I think this view is the correct one; the truth of the return may, no doubt, be put in issue, and I feel myself unable to advise your Lordships that the Queen's Bench Division were not in 22 point of law justified in issuing the writ. 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. I come to this conclusion with some regret, as the question intended to be raised by this appeal is one of no small importance. But, in my opinion, it was premature to raise it at the present stage, and I think it very important not to set a precedent which might prove prejudicial to the liberty of the subject of which the writ of habeas corpus is the most effectual safeguard. 73. The writ could not be used as a form of punishment or as a remedy for a past wrong (as Lindley LJ s dictum seemed to imply); but it could be used to test whether the defendant had any real ability to return the person. 74. The decision of the House of Lords was not the end of the matter. Dr Barnardos return stated that Henry Gossage had not been in his custody, power, or control since 16 November 1888. Dr Barnardo also denied any communication with William Norton since that date: I have by my agent in Canada, and by employing skilled detectives, sought and endeavoured, and am still seeking and endeavouring to the best of my ability, to discover the said Henry Gossage, but I have been hitherto unable to discover him or to obtain intelligence or information about him [...] and I am therefore unable further to obey the writ. (The Queen v Barnado. In the Matter of Gossage, An Infant: The Times, 2 November 1892, 3c.) 75. Mrs Fords lawyers wished to traverse the return. The court agreed to investigate the truth of the return, and gave time for the filing of further affidavits (The Queen v Barnardo (Re Gossage) in Daily News 8 November 1892). 76. The matter was not finally determined until May 1893, when the case came before Baron Pollock and Hawkins J . On that occasion, Dr Barnardo was required to supplement the information in his affidavit by giving evidence in court. In the end, the Court accepted reluctantly that Dr Barnardo was unable to do anything more to return the boy to his mother: 23 J ustice Hawkins said that the circumstances under which the boy was parted with created suspicion, and the shifty nature of the correspondence increased that suspicion. The affidavits went to show that there was no such person as Mr William Norton, of Quebec, and the circumstances made him extremely suspicious as to the truth of the return. (The Queen v Barnardo in The Standard, 19 May 1893).
OBrien 77. In R v Secretary of State for Home Affairs, ex parte OBrien [1923] 2 KB 361 (OBrien), the applicant was detained in London in a purported exercise of emergency powers. He was immediately transferred to Mountjoy Prison in Dublin and held by the independent Irish Free State pursuant to an informal arrangement between the Secretary of State and the Free State Executive. 78. OBrien sought a writ of habeas corpus. He contended that his detention was unlawful and that the Secretary of State had sufficient control over him for the writ to be issued. Despite protestations by the Secretary of State that OBrien was under the control of the independent Free State government, the Court of Appeal (Bankes, Scrutton and Atkin LJ J ) issued the writ and rejected the Attorney Generals submission that the Court had no jurisdiction to do so (p. 369). 79. Scrutton LJ noted that OBriens case raised: Questions of great importance regarding the liberty of the subject, a matter on which English law is anxiously careful, and which English judges are keen to uphold This case is not to be exercised less vigilantly, because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all It is quite possible, even probable, that the subject of this case is guilty of high treason: he is still entitled only to be deprived of his liberty by due process of law (p. 382). 80. Scrutton LJ continued: he was arrested by police officers at his house in London and taken the same day to Liverpool and Dublin, where he was confined in Mountjoy Prison. He has now been in that 24 prison for nearly two months; he has not been brought before any Court for trial, and it is apparently not the intention of those who hold him to bring him before any Court. He has not been informed of the evidence on which an order was made for his arrest, but is offered an opportunity of appearing before a committee meeting in private but presided over by an eminent ex-judge. He is apparently imprisoned without trial for a sentence of indefinite duration, and the Home Secretary who ordered his arrest and deportation to Ireland states to the Court by his counsel, the Attorney General, that the Home Secretary cannot release him. Before the war it is almost impossible to conceive that such a state of things could exist in England. 81. The test was set out by Scrutton LJ at p. 391: I do not wish to tie myself to the exact degree of power over the body which justifies the issue of the writ, for various high authorities have used different words. Lord Herschells language is custody, power or control, Lord Macnaghtens under control or within reach; Lord Halsburys wrongful detention by himself or his agent. The facts of the present case are that the Secretary of State has told the House of Commons: In my opinion the government has not lost control we have a complete control over the position in which the internees are placed He now says on affidavit that the prisoner is 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. On this conflicting evidence, all proceeding from the Home Secretary himself, it appears to me quite doubtful whether or not, if an order is made for the production of the body, the Home Secretary can or cannot produce that body. Under these circumstances I think the proper course to follow is that affirmed by the House of Lords in Barnardo v. Ford. There Dr. Barnardo alleged on oath that before the issue of the writ he had parted with the body to an independent person; that he did not know where that person or the body were, and had no means of communicating with them; the applicants disputed this on various grounds, and the House of Lords affirmed the order of the Court of Appeal and ordered the writ to issue in order that a return might be made to it, on which return the truth might be ascertained. It may be that on hearing that in the opinion of this Court the order was issued without legal authority, the Home Secretary with the assistance of the Irish Free State Government will produce the body, as it is hardly in the interests of either Government to act illegally. For these reasons I think that the rule should be made absolute for the writ to issue on the terms of the rule nisi. 25 82. Atkin LJ agreed: the question is whether there is evidence that the Home Secretary has the custody or control of the applicant. Actual physical control is obviously not essential In all cases of alleged unjustifiable detention such as arise on applications for the writ of habeas corpus the custody or control is ex hypothesi unlawful; the question is whether it exists in fact. In the present case there may be some doubt. The Home Secretary by the Attorney-General alleged that he has no control; on the other hand the applicant by his affidavit submits reasons for supposing that the Home Secretary is in a position by agreement to cause him to be returned to England, while the answer of the Home Secretary does not in terms deny that he is in such a position; and refrains from stating that he has no control. The affidavit states that the applicant is in the control of the governor of the prison, and is not subject to the Home Secretary's orders, but this is by no means inconsistent with an agreement with the Free State Government to return on request. I think moreover that the applicant strengthens his case by the reference to the debate in Parliament on Monday, March 19, 1923, a report of which was put in. [] There is, to say the least, grave doubt whether he is or not still in the custody or control of the Home Secretary this Court should order the writ to go addressed to the Home Secretary in order he may deal fully with the matter, and if he has in fact parted with control show fully how that has come about. The rule must be made absolute. (pp. 398-9). 83. Bankes LJ reached the same conclusions at p. 381: The last point for consideration is whether a writ ought to be issued directed to the Home Secretary having regard to the contention of the Attorney-General, which was accepted by the Divisional Court, that as the applicant had been deported to and was interned in the Irish Free State the Home Secretary had no longer any power or control over him except in so far as the Government of that State had agreed that, in the event of the advisory committee deciding that he ought not to have been deported and interned, they could release him. From the statements made in the House of Commons to which we have been referred it would appear that the Home Secretary was at the time he made those statements under the impression that he had not lost control over the persons who by his orders had been interned in the Irish Free State. In his affidavit he states that the Governor of the Mountjoy Prison is an official of the 26 Free State Government, and is not subject either to his orders or to those of the British Government. This is no doubt an accurate statement in reference to the Governor of the prison, but it leaves the question in doubt how far, if at all, by arrangement with the Free State Government the body of the applicant is under the control of the Home Secretary. This question cannot, I think, be satisfactorily disposed of unless the rule is made absolute which will give the Home Secretary the opportunity, if he desires to take advantage of it, of making the position clearer than at present it appears to be. This was the course taken in Barnardo v. Ford, and is, in my opinion, the appropriate course to take in the present case. The order, therefore, is made absolute. 84. The Secretary of States appeal to the House of Lords was dismissed on jurisdictional grounds, accompanied by statements of the importance of the writ (Secretary of State for Home Affairs v OBrien [1923] AC 603). Lord Birkenhead said at 609: We are dealing with a writ antecedent to statute, and throwing its root deep into the genius of our common law It is 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. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by Courts of Law as a check upon the illegal usurpation of power by the Executive at the cost of the liege. 85. Lord Atkinson dissented on the jurisdiction point and would have heard the appeal, but approved the analysis of the Court of Appeal at 624: Neither can, I think, the order of May 9, 1923, be treated as an abortive order. It operates with coercive force upon the Home Secretary to compel him to produce in Court the body of the respondent. If the Executive of the Free State adhere to the arrangement made with him he can with its aid discharge the obligation thus placed upon him. If the Irish Executive should fail to help him he would be placed in a very serious position. Unless this Executive breaks what has been styled its bargain with the Home Secretary he had, in effect, the respondent under his power and control. It would be rather unfair to this Executive to assume gratuitously beforehand that it would not keep the bargain made with it, simply because that bargain was not enforceable at law. (emphasis added) 86. On the return date, the Secretary of State produced a factual return and: 27 He produced the body of the said Art OBrien in Court. OBrien was thereupon discharged (p. 400). 87. Three weeks later, Royal Assent was given to the Restoration of Order in Ireland (Indemnity) Act 1923. The Act was passed because of the clear breach of the 1679 Act in sending OBrien to Ireland: So real did the danger seem to those in authority that an Act of Indemnity was hastily passed in order to rescue these gentlemen (one of them the principal Law Officer of the Crown) from the unpleasant possibility of going to prison for life, forfeiting all their property, being perpetually disqualified from holding public office, and becoming incapable of any pardon (Chandler, Praemunire and the Habeas Corpus Act (1924) 24 Columbia LR 273).
Zabrovsky 88. The Appellants rely on Zabrovsky v General Officer Commanding Palestine & another [1947] AC 246 5 . Mr Zabrovskys son, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine and then transported to a military detention camp in Eritrea. An application for the writ of habeas corpus was made in the Supreme Court of Palestine, against the British Officer commanding Mandate Palestine and the police. 89. On appeal, the Privy Council held that the order for the banishment of Mr Zabrovskys son was lawful: In the troublous times of war and in the chaotic post-war conditions the scope of legal and permissive interference with personal liberty has been extended and restraints have been legalised by the legislature which would not have been accepted as legitimate in normal times. Thus in England, in what are called the Reg. 18B cases, Liversidge v. Sir John Anderson the House of Lords upheld the legality of a detention of the applicants by the Executive without trial and also held that the Executive could not be compelled to give reasons for the detention
5 Zabrovsky was not cited in the Courts below. 28 the effect of the decisions is to vest a plenary discretion in the Executive, affecting the liberty of the subject and pro tanto to substitute the judgment of the court, based on ordinary principles of common law right, the discretion of the Executive acting arbitrarily in the sense that it cannot in substance be inquired into by the court. (pp. 255-256). 90. The Privy Council also held that there was no evidence before the court which would justify the allegation that Eliezer was being detained by the respondents or one of them (p. 259). Further: when the court made the order neither respondent had the deportee in his custody or control nor had either of them any power to produce the body (p. 259). 91. OBrien was distinguished on the basis that the deportation order in that case was unlawful. In addition, the view of the Privy Council was that there was no evidence of control. The Respondents had no control over the continued detention of Mr Zabrovskys son. There was no evidence of any arrangement that Mr Zabrovskys son would be returned upon request, nor was there any reason why any such request should be made, given that he had been lawfully deported. 92. Zabrovsky was cited in the Bancoult litigation concerning the Chagos Islanders. Lord Mance (in a dissenting judgment) noted that Zabrovsky relied on Liversidge v Anderson and that precedent is not a happy one [2009] 1 AC 453 at [158]. The majority did not refer to Zabrovsky. Sedley LJ expressed the same view in the Court of Appeal ([Zabrovsky] ought in my view to be regarded as the majority decision in Liversidge v Anderson is now regarded as expediently and, at that time, excusably, wrong per Sedley LJ at [2008] QB 354 at [52]).
Mwenya 93. In ex parte Mwenya [1960] 1 QB 241 Mr Mwenya had been required by the Governor of Northern Rhodesia to remain within the Mporokoso District of Northern Rhodesia. He sought habeas corpus so as to permit him to leave the 29 District. The application named three respondents: the Governor of Northern Rhodesia, the District Commissioner for the Mporokoso District, and Her Majesty's Secretary of State for the Colonies. 94. The Divisional Court rejected the application for the writ against the Secretary of State on the grounds that he did not have the requisite custody or control. Parker CJ said at 279-280: Reliance was further placed by the applicant on Barnardo v. Ford, and Rex v. Secretary of State for Home Affairs, Ex parte O'Brien. Both those cases are authority for the proposition that the writ will issue not only to the actual gaoler but to a person who has power or control over the body. Further, in O'Brien's case the writ was issued to the Secretary of State for Home Affairs, who had in fact handed the physical custody of the body over to the Government of the Irish Free State. It is clear, however, from the facts of that case, that the Secretary of State had not only been responsible for the original detention but that there were strong grounds for thinking that in handing over the body to the Government of the Irish Free State he had not lost all control over it. In those circumstances the court decided to issue the writ in order that the full facts could be investigated and argument heard on the return. The position here is quite different. The restriction orders under which the applicant is detained were not made by the Secretary of State. His approval or consent was not required and there is no evidence that he took any part in the detention. No doubt the writ will issue not only to a person who has the actual custody but also to a person who has the constructive custody in the sense of having power and control over the body. Here, however, we can find no custody by the Secretary of State in any form. We were referred to a number of provisions in the constitution of, and in other legislation in regard to, Northern Rhodesia under which the Secretary of State is specifically given certain powers, and powers which extend beyond advice. But we find it impossible to say that as a result of those powers he can be said to have the custody of the body in any sense. Apart from the powers given by such legislation the only powers of the Secretary of State arise by reason of his constitutional position under which he advises Her Majesty. The fact, however, that he can advise and attempt to persuade Her Majesty to cause the body to be brought up does not mean that he has such a control as will enable the writ to issue. Nor is it in our view relevant that if the writ were issued the Secretary of State might well feel it proper to influence the production of the 30 body. Accordingly, while agreeing that there may be special circumstances in which a Secretary of State is amenable to the writ, we can find nothing in the facts of this case which would justify us in calling upon him to produce the body. That being so, we intimated our decision to that effect and this made it unnecessary to proceed further with the case. 95. The Divisional Court also rejected the application for the writ against the Governor of Northern Rhodesia and the District Commissioner for the Mporokoso District, on the basis that the court had no jurisdiction to issue the writ to custodians in Northern Rhodesia. 96. On Mwenyas appeal to the Court of Appeal, only the issue relating to the jurisdiction of the court to issue to writ to custodians in Northern Rhodesia was argued (p. 280). The appeal on that limb was successful on the basis that Northern Rhodesia was indistinguishable from that of a British colony or a country acquired by conquest (p. 302).
Re Sankoh 97. Re Sankoh [2000] EWCA Civ 386 concerned the leader of the Revolutionary United Front in Sierra Leone. He was arrested in Sierra Leone and detained. The UK armed forces provided a helicopter to the Sierra Leone Police to enable them to move the applicant twice during one day. Sankoh was also given some limited medical attention during and before the flights. At no point was he held by UK forces. There was no evidence of an agreement or understanding with the Sierra Leone government. Further, as at the date of the application, the UK had no knowledge of Mr Sankohs whereabouts. 98. Laws LJ , with whom the other members of the Court of Appeal agreed, distinguished OBrien on the grounds that there was not a whisper of an objective basis for the suggestion that the Secretary of State has now anything amounting to a degree of control such as might justify the issue of a writ of habeas corpus (Re Sankoh at [12]).
31 Habeas corpus: Application of the English authorities in other countries Supreme Court of Zambia 99. The Supreme Court of Zambia heard issues very similar to those which arise in the present case in Shipanga v Attorney General [1976] Zambia Reports 224, in International Law Reports Vol. 79, 1989, pp.18-47 (Shipanga). 6
100. Shipanga concerned the detention of a Namibian who was the Information Secretary of a liberation movement, the South West Africa Peoples Organization (SWAPO). In the course of factional disagreements within SWAPO, he was held by SWAPO, with the support of Zambian forces, in a camp in Zambia. He was moved to Tanzania shortly before the case came before the Supreme Court. The case therefore concerned an application for habeas corpus by a foreign national being held in a third country. 101. The Supreme Court considered the English authorities at some length. The majority concluded that the writ should issue. Baron DCJ stated at 43: I have cited all these dicta, and at length, in order to demonstrate the great weight of high authority on this subject, all of which is to the effect that where there is doubt as to whether the respondent has relinquished all control the writ should issue. On the facts before us, can this be said with certainty? I entertain no doubt that it cannot. The learned Attorney-General has stressed the political nature of the circumstances surrounding this application and the appellants departure from Zambia: since, if my views are accepted, there will be a return I prefer to say as little as possible about the appellants departure from the jurisdiction while the matter was pending before this court. But certain facts are quite clear on the affidavits; the relationship between the Zambian Government and the SWAPO leadership is obviously close and cordial, and it goes without saying that Zambia and Tanzania are on the friendliest of terms. 102. Drawing a comparison with OBrien, Baron DCJ stated at 43-44 (emphasis added): The decision rested on the doubt as to whether or not the Home Secretary, by virtue of the agreement between England
6 Shipanga was not cited in the courts below. 32 and the Irish Free State, was able to secure the return of the applicant. The precise measure of this ability was the subject of conflicting statements by the Home Secretary himself. In the present case there is no evidence of any formal agreement between Zambia and either SWAPO or Tanzania on the point; but with these qualifications there are close affinities between this and OBriens case, where the applicant was in fact brought before the court on the return. Bearing in mind the political relationships and realities, I find it difficult to believe that the absence of formal agreements will make any difference; it is difficult to imagine that a request from Zambia to SWAPO for the appellants return would not result in his being returned. 103. The Supreme Court issued the writ, returnable on 5 October 1976. A judgment delivered on 20 J anuary 1977 by Cilungwe C.J ., with whom the other members of the Court agreed, explains what happened next ([1977] Zambia Reports 52, in International Law Reports Vol. 79, 1989, pp.47-48): On [5 October 1976] an affidavit was filed by the respondent [the Attorney General] from which it appeared that SWAPO had been approached and had declined to release the appellant. Mr Patel on behalf of the appellant pointed out that no approach had been made to the Government of the Republic of Tanzania and applied for the return day to be extended to enable this to be done; the learned Attorney-General said that the respondents stand was that the decision of this Court was not in the best interests of the liberation struggle and that the Government of the Republic of Zambia could not go to the Republic of Tanzania with a request to do something with which it did not agree. This Court granted the application to extend the return day, but stressed that we had, of course, no authority to make an order against the government of another country and that the order could be, and was, no more than that the respondent request the Government of Tanzania to return the appellant to the Republic of Zambia. On 14 October, the extended return day, a further affidavit was filed by the respondent, deposed to by the Permanent Secretary in the Ministry of Foreign Affairs, which is largely a political argument. The deponent said that discussions had been held with the High Commissioner for the Republic of Tanzania to throw out feelers as to what would be the reaction of the Government of the Republic of Tanzania to a request that the Republic of Zambia would receive a negative answer. The deponent went on to say that whether the Republic of Zambia should make such a request involved high 33 State policies which were extremely sensitive and were not matters falling within the legal ambit. [] It is most unfortunate that politics have been introduced into this matter. The duty of the respondent was clear and simple. This Court ordered that a writ of habeas corpus issue, and subsequently ordered that a request be made to the Government of the Republic of Tanzania to return the appellant. It is the duty of the respondent to comply with that order. No litigant, whether the Government or a private litigant, can be heard to say to this Court and what is more, in the very proceedings in which the decision was made that the decision is not in the best interests of the liberation struggle and that he cannot do something with which he disagrees, or that high State policies are involved which are extremely sensitive and are not matters falling within the legal ambit. [] For these reasons, in my view this Court cannot accept the return of 14 October. I would propose that the respondent be afforded a final opportunity to make a proper return to the writ, and that the return day be extended for this purpose. 104. A further judgment of Silungwe C.J . on 5 J anuary 1978 records that: It is clear from the last return that the appellant will not be returned to the jurisdiction of this Court; that being so there is nothing further that this Court could do in the habeas corpus proceedings ([1978] Zambia Reports 71, in International Law Reports Vol. 79, 1989, pp.48-49).
New Zealand 105. The Supreme Court of New Zealand considered the English authorities in Taylor v Jones and Skelton v Jones [2006] NZSC 113. 7 A boy had disappeared from a public library in the company of a woman said to resemble Mrs Taylor, a close friend of his mother (Mrs Skelton). 106. The evidence suggested that the child was being concealed by his mothers father, Mr Headley. The writ was issued to Mr Headley and five other defendants. The key findings of fact in relation to the other five defendants were recorded at paragraph 4:
7 These cases were not cited in the courts below. 34 The J udge was satisfied from the evidence that each of the other five defendants was likely to have knowledge of the place at which J ayden is presently held and, apart from Mrs Taylor, might be able to exercise influence over Mr Headley to return J ayden in terms of any order the Court might make. 107. Mrs Taylors appeal was successful, for reasons set out at paragraph 27: [] we can see no good reason to allow the writ to be used against a defendant who no longer has any ability to influence the detention of the subject child. It is not intended as a device whereby the Court may assume an inquisitorial role by examining persons who may have information about a detention for which those persons are no longer responsible. The writ can properly be directed only to those who on the evidence adduced by the applicant are, or appear to be, controlling and managing the continuance of the detention. [footnote: The control may be indirect or de facto, as it was in Secretary of State for Home Affairs v OBrien.] 108. On the other hand (paragraph 30): Mrs Skeltons position was quite different. It was realistically accepted by her counsel, Mr J ones QC, that Heath J was entitled to be satisfied on the evidence before him that she might be able to exercise influence over Mr Headley in relation to the detention of J ayden. In other words, putting the matter in the way in which the question of sufficiency of proof for the issue of the writ is best articulated, it appeared probable on the facts before the Court that Mrs Skelton had the requisite control over J ayden, through the agency of her father, to make her amenable to the writ. 109. Mrs Skeltons appeal, ultimately unsuccessful, was on grounds of abuse of process and procedural deficiencies. The abuse of process argument was that the proceeding was an attempt to generate adverse publicity in order to encourage Mr Headley out of hiding. The Supreme Court observed at paragraph 33: It would, in our view, be unrealistic not to acknowledge that the respondent appears to be using the writ of habeas corpus to put pressure on Mrs Skelton to procure J aydens release from detention. But, as was made clear in Barnardo, the exertion of pressure on the defendant by the use of the writ is not improper when it appears probable that the defendant has unlawful custody or control of a child. 35 110. Habeas corpus is also a valuable means of dealing with international child abduction cases where a child has been sent to a country that is not a signatory to international child abduction conventions but where the parent with control over the child remains in the jurisdiction. The New Zealand courts have applied Barnardo and OBrien to such cases and issued the writ so as to protect the best interests of the child. Clark & McCoy in The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth summarise the New Zealand case law and note at p. 173: Parents have always sought to evade the custody orders of a court by illegally removing children outside the jurisdiction, especially since the rise of modern travel but the courts in countries where the writ of habeas corpus is available have developed mechanisms to thwart such practices. 111. For example, in Re Child Abduction (Habeas Corpus) (1998, unreported) (as summarised in Clark & McCoy at p. 180): the young school child had been removed by her maternal grandmother at the instruction of her mother to Samoa. Habeas corpus proceedings were instituted in New Zealand directed against the wife who remained in New Zealand throughout. Samoa is not a signatory state to the United Nations Convention on the Civil Aspects of International Child Abduction. Smellie J robustly ordered the writ to run as the evidence demonstrated that the mother was still in effective control and custody of the child The mother caused the child to fly back from Samoa to New Zealand by the return date under the writ.
Federal Court of Australia 112. In Hicks v Attorney General [2007] FCA 299 an Australian national detained in Guantanamo Bay detainee sought habeas corpus in the Federal Court of Australia. 113. The Attorney General sought summary judgment arguing that, unlike in OBrien, there was no agreement between the United States and Australia, and nor had Australia ever stated that it had control over Mr Hicks. The case, so the Attorney General argued, was closer to Sankoh than OBrien. 36 114. Tamberlin J rejected the Attorney Generals application. He stated at paragraphs 49-50: [49] The respondents submit that persuasion or the 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 submits 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. [50] Notwithstanding the force of the submissions made by the respondents, I am not persuaded, having regard to the authorities and the line of reasoning, that there is no reasonable prospect of success on this issue. 115. Before the substantive application could be heard, Mr Hicks was released.
US Authorities 116. In recent years, there has been extensive US litigation on the constitutionality of US detention of prisoners in overseas sites where it has been claimed at various times by both the US executive branch and the US Congress through the passage of jurisdiction-stripping legislation the writ of habeas corpus does not run. The availability of habeas corpus for foreign national prisoners held overseas by the US is now substantially narrower than in other common law jurisdictions: a) The high water mark of post-2001 US habeas was Boumediene v Bush, 553 U.S. 723 (2008). By 5-4 the Court held that the Suspension Clause of the US Constitution (the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion or Invasion the public safety may require it) protected detainees at Guantanamo Bay. The Court 37 held that a Congressional statute stripping federal courts of jurisdiction to hear habeas petitions of prisoners at Guantanamo Bay was an unconstitutional suspension of the writ. In so deciding, the Court held that consideration had to be given to: i) The citizenship and status of the detainees and the adequacy of the process used to determine the status of detainees. (The rights of US citizens are considerably stronger than those of non-citizens under the US Constitution.) ii) The nature of the sites where apprehension and then detention took place. iii) The practical obstacles inherent in resolving the detainees entitlement to the writ. These matters, in the courts view, determined the extent to which the Suspension Clause had extraterritorial application to non-citizens in Guantanamo. In contrast, the citizenship of a person is irrelevant to English common law habeas principles. b) In Maqaleh v Gates (D.C. Cir. May 21, 2010), the DC Court of Appeals held that habeas did not apply to detainees at Bagram. The decisive point was that Bagram, indeed the entire nation of Afghanistan, remains a theater of war (p. 22). The Court relied on a Second World War case, Johnson v. Eisentrager, 339 U.S. 763 (1950): such trials would hamper the war effort and bring aid and comfort to the enemy (p. 24). It was held that the Suspension Clause of the US Constitution had no extraterritorial application to the detention of non-citizens in a theatre of war. The current position is therefore that the US Courts will not exercise the habeas jurisdiction over non- US detainees held by the US government in Bagram. c) However, in certain cases, the Court of Appeals accepted that the result might be different: We do not ignore the arguments of the detainees that the United States chose the place of detention and might be able to evade judicial review of 38 Executive detention decisions by transferring detainees into active conflict zones, thereby granting the Executive the power to switch the Constitution on or off at will. Brief of Appellees at 34 (quotation marks and citation omitted). However, that is not what happened here. Indeed, without dismissing the legitimacy or sincerity of appellees concerns, we doubt that this fact goes to either the second or third of the Supreme Courts enumerated factors. We need make no determination on the importance of this possibility, given that it remains only a possibility; its resolution can await a case in which the claim is a reality rather than a speculation. In so stating, we note that the Supreme Court did not dictate that the three enumerated factors are exhaustive. It only told us that at least three factors are relevant. Boumediene, 128 S. Ct. at 2259 (emphasis added). Perhaps such manipulation by the Executive might constitute an additional factor in some case in which it is in fact present.
Where a detainee was brought into Afghanistan from another place for the purpose of evading US habeas jurisdiction, this might be a factor in favour of granting a detainee the protection of the Suspension Clause. Maqaleh was remanded to the district court so petitioners could introduce evidence on this point, and the issue has yet to be decided. d) Even if habeas is available, the scope of the remedy has been narrowed by Kiyemba v Obama 130 S.Ct 1235 (2010). In Kiyemba, a group of Chinese Uighur detainees at Guantanamo Bay were successful in their habeas claims in the US District Court. The judge made the writ in the usual terms: that the detainees be produced at Court where they would be discharged. The Court of Appeals stayed this order and the US Supreme Court eventually quashed the stay and remitted the case back to the Court of Appeals. The detainees had been offered resettlement in Palau, a Pacific island. It was common ground that the detainees could not be returned to China, where they would face persecution. The detainees rejected resettlement in Palau. On remittal the Court of Appeals held that the successful petitioners had no right to be released into the United States and it was a matter for the Executive and Legislative Branches to determine where to release a detainee, not the Court. The Court did not have power under the US Constitution to grant the ordinary habeas remedy of bringing the detainee before the Court. The Supreme Court refused certiorari. Some Uighur detainees remain at Guantanamo Bay, despite having been successful in their habeas petition.
39 Issue (i): The proper scope of the concept of control Summary 117. At its simplest, the proper scope of the concept of control is whether or not the respondent to the writ has sufficient power or control to bring about the detainees release from detention. Or, as Farbey & Sharpe put it, the crux of the matter is simply whether or not an order of the court can be made effective (p. 196). 118. In the present case, the Appellants have sufficient control because: a) they are entitled to require the Respondents release or his return to UK custody under the Geneva Conventions; alternatively b) they have the right to request the Respondents release pursuant to the 2003 or 2008 MoU, and the United States has undertaken to comply with such requests. 119. The Appellants contend that the Respondents case is simply that the Appellants could make a request through diplomatic channels for his release, as they could in respect of any other person detained by the United States (Appellants case, para. 4.20). That contention is incorrect. The Respondents case is (and always has been) that there is an agreement between the United Kingdom and the United States that he would be released on request. That agreement is contained in the Geneva Conventions and supplemented by the MoUs. It is that agreement that is the basis of the Respondents case on control. Geneva Conventions 120. Lord Neuberger MR identified the relevant provisions of the Geneva Conventions and their effect: 33. The Secretaries of State suggest that Geneva IV applies to the applicant, which seems to me to be likely on the available evidence (although I think that it would make no difference to my basic reasoning if it was Geneva III which applied). Now that the US Detainee Review Board has made its determination and now that the 40 Iraq war is ended it seems to me at least strongly arguable (and, at least on the evidence and arguments which we have heard, correct) that the applicant should have been released by virtue of the provisions of Articles 49, 132, and 133 of Geneva IV. Mr Eadie makes no submissions to the contrary on behalf of the Secretaries of State, and, as it is not represented in these proceedings, the US Government has not submitted to the contrary either. 34. If that is right, given that the applicant has not in fact been released, the UK Government is, again at least strongly arguably (and, at least on the evidence and arguments which we have heard, actually) entitled either to demand his release or to demand his return to UK custody under Article 45 35. I should emphasise that I am not suggesting that the conclusions discussed in the previous paragraph are certainly correct. What I am saying is that, in the light of Geneva IV, there is a substantial case for saying that the UK Government is under an international legal obligation to demand the return of the applicant, and the US Government is bound to accede to such a request. 121. The UK retains control because it can (indeed should) make a request for the return of the Respondent, and the US Government has agreed in Geneva IV to accede to such a request. The MoUs 122. An MoU is not legally binding in international law; it is not a treaty. However, an MoU contains undertakings between states to act according to its terms. It is to be expected that other states, especially friendly states such as the USA, will comply with MoUs and similar assurances. The proper interpretation of the MoU, where it is relevant to the issues before the domestic court, is a matter for the Court. 123. For example, In Ahmad & Aswat v USA [2006] EWHC 2927 (Admin) the Divisional Court (Laws LJ and Walker J ) at [75-76]: a) carefully considered and analysed whether diplomatic assurances from the US government can properly be relied upon; b) reached its own construction of a diplomatic note; and 41 c) held that a high degree of reliance can be placed on assurances given by the USA. 75. the assurances in the Notes were given by a mature democracy. So much goes without saying. But the United States is also a State with which the United Kingdom has entered into five substantial treaties on extradition over a period of more than 150 years. Over this continued and uninterrupted history of extradition relations there is no instance of any assurance given by the United States, as the requesting State in an extradition case, having been dishonoured. In Bermingham & ors [2006] EWHC 200, [2006] 3 AER.239 and Welsh and Thrasher [2006] EWHC 156, [2006] 3 AER.204, decided in this court, Ouseley J and I were much concerned with a similar issue or perhaps a particular application of the same issue being called on in effect to decide whether the United States authorities could be relied on to abide by the specialty rule in relation to the prospective extradition of the appellants in those cases. Undertakings had been given on the point 76. I see no reason to doubt that the American authorities would likewise give effect to the views of this court as to the critical importance of the integrity of the Diplomatic Notes. Indeed the case may perhaps be said to be a fortiori: the Notes have the special status of having been issued out of the Embassy. The American authorities will appreciate, not least from the terms of the judgments in this case, that their request for the appellants' extradition to the United States has been acceded to expressly on the faith of the Notes, read and interpreted as this court reads and interprets them 124. The Respondent was covered by the 2003 MoU, which was in force when he was originally detained. Under paragraph 4 of the 2003 MoU, the US undertook to return detainees to the UK without delay upon request. 125. The concern that motivated the 2003 MoU was to avoid placing detainees in what the Court of Appeal in November 2002 called a legal black-hole. See R (Abbasi) v SSFCA and SSHD [2002] EWCA Civ 1598 at [64]: 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. 42 126. The legal black-hole identified by the Court of Appeal in 2002 was avoided by means of the 2003 MoU. It was designed to ensure that the US government applied the Geneva Conventions to detainees transferred from the UK (and that the UK could get such detainees back on demand). Paragraph 4 of the 2003 MoU was an important component of the UKs efforts to comply with its own obligations under the Geneva Conventions. The UK secured a commitment from the US that detainees would be treated in accordance with the Conventions, and (by paragraph 4) that detainees would be returned to the UK on request. Those undertakings were crucial in circumstances where there may otherwise have been grave cause for concern over the USs attitude towards the Geneva Conventions. This was not merely a matter on the international legal plane. Grave breaches, including transferring a person out of the country in which he has been captured, are a criminal offence in the UK pursuant to the 1957 Act. 127. The Appellants case is that the 2003 MoU was superseded by the 2008 MoU, which (they allege) contains no equivalent to paragraph 4. However: a) The Geneva Conventions, which the UK was in 2003 very concerned to ensure were properly observed by the US, remain extant. By their nature obligations under the Geneva Conventions do not cease or expire at the end of hostilities, particularly in respect of civilian detainees (or indeed prisoners of war) who have been unlawfully deported or transferred. Therefore the reasons for the Appellants entering into the MoU in 2003 remained just as live in 2008. b) The UK could not have allowed the first MoU to lapse, without any equivalent replacement, without risking a grave breach of the Geneva Conventions in respect of those it had transferred to the US. The purpose of the MoU was to ensure that the US continued to comply with the Conventions in respect of detainees transferred from the UK. c) As at the date the 2008 MoU was signed, Mr Hutton MP had made his statement to Parliament about the Respondents case. The Appellants 43 were aware of the practical importance of the MoUs for current detainees held by the US. d) The Appellants have given no explanation of why in 2008 they considered it necessary, desirable or lawful to give up their right to request the Respondents return. e) The 2008 MoU does not state that it applies to all persons detained under the 2003 MoU, nor does it state that it supersedes the 2003 MoU. The more natural reading is that persons detained under the 2003 MoU remain subject to the 2003 MoU. f) In the circumstances, the Respondent remains subject to the 2003 MoU and the Appellants remain entitled to request his return. 128. Alternatively, if the Respondent is now subject to the 2008 MoU, that MoU nevertheless preserves the right of the UK to request his return, and the corresponding obligation on the US to comply with such a request. 129. Mr Parmenter has noted that the 2008 MoU does not include any provision about the transfer of detainees back to the transferring Participant (Parmenter 2, para. 38). This is correct. However, Mr Parmenters account is carefully worded. He does not go as far as to say that the effect of the 2008 MoU is to give up the UKs right to obtain the return of a detainee under the Geneva Conventions. This was an essential part of the UKs position and Article 4 of the 2008 MoU preserves and maintains it. Indeed, if the UK had given up its right to obtain the return of detainees in the position of the Respondent, it is likely to have been committing grave breaches of the Conventions, giving rise to possible domestic legal liability. 130. The right of return provisions in the 2003 MoU were intended to reflect and preserve the obligations imposed by the Geneva Conventions. The Respondent remains subject to the protection of the Geneva Conventions. There is no suggestion that the UK intended to give up its right to request the Respondents return in the 2008 MoU. Indeed, such a step would have been contrary to the Geneva Conventions. It must therefore follow that the 44 Respondent either remains subject to the jurisdiction of the 2003 MoU, or else that the UK has the right to request his return pursuant to the 2008 MoU. As Lord Neuberger MR put it in the First J udgment: 37. The first MoU was necessary because, in order to comply with Article 12 of Geneva III and Article 45 of Geneva IV (see paragraphs 12 and 14 above), the UK had to satisfy itself of the willingness of the US to apply the Conventions to any prisoners of war or protected persons transferred by the UK to the US. For this purpose, a right to require the return of the transferred prisoner of war or protected person was necessary. In those circumstances, it is difficult to see how, consistently with its obligations under the two Conventions, the UK could simply have allowed the first MoU to lapse, without any equivalent replacement, without risking effectively washing its hands of any obligation towards those persons it had transferred to the US in circumstances where, absent any MoU, the US might contend that the Convention did not apply to such persons. 131. Finally, the Secretary of States evidence prior to the issue of the writ was silent on the question of whether the US Government would return the Respondent to UK custody, if requested to do so. In his first witness statement, Mr Parmenter stated: MODs considered view is that going further and making a request purportedly relying on the 2003 MoU would be an inappropriate, and futile, course of action. As indicated above, MOD considers that the 2003 MoU is no longer extant and has no continuing relevance to the Applicant (Parmenter 1, para. 33) (emphasis added). 132. This very carefully worded passage leaves unanswered the position under the 2008 MoU and/or the Geneva Conventions. Further, at no point does Mr Parmenter explain on what evidence he says that such a request would be futile. The Respondent respectfully agrees with the analysis of the Court of Appeal on this issue: 39. It is true that Mr Parmenter says that the Ministry of Defence considers that it would be 'futile' for the UK Government to request the US Government to return the applicant. However, I am unconvinced by the suggestion that this bald observation could justify the conclusion that there was little, let alone no, real possibility of a writ resulting in the applicant being handed over. If anything, the observation rather supports the proposition that there are grounds for doubt whether the Secretaries of State have lost control over the applicant, as in Barnardo [1892] AC 326 and O'Brien [1923] 2 KB 361. The observation was contained in a witness statement which ran 45 to twenty pages (and Mr Parmenter made a second statement which was even longer). Yet there is no stated factual basis for the observation, which appears to be based, in large part, upon the Ministry's view that the first MoU is no longer extant and has no continuing relevance to the applicant, and upon the, undisputed, fact that the first MoU was not intended to create legally enforceable rights and obligations. There is no reference in the observation to the second MoU or to either of the two Conventions, and Mr. Parmenter does not grapple with the consequences, in terms of the UK's continuing obligation to comply with the Conventions, of the UK simply allowing the first MoU to lapse. 133. As Lord Hoffmann put it in RB (Algeria) v SSHD [2010] 2 AC 110 at [192] in the context of written assurances given by Algeria: Mr Drabble submits that the Court of Appeal should for two reasons have allowed the appeal on this ground. The first is that the assurance from Algeria contained no express reference to standards of international law as to what counted as torture or inhuman or degrading treatment... The arrangements with Algeria were negotiated at the highest level and it was plain to the Algerian authorities that what the United Kingdom required was an assurance which would enable it to comply with its obligations under article 3. On the other hand, the assurances had to be expressed in language which would respect the dignity of a sovereign state. In the cases of RB and U the assurance therefore said that they would enjoy the following rights, assurances and guarantees as provided by the Constitution and the national laws currently in force concerning human rights . . . (h) His human dignity will be respected under all circumstances. The main reason why SIAC thought that this assurance would satisfy article 3 was that it was not in the national interest of the Algerians to fail to comply. In those circumstances, the precise language of the assurance was less important than the effect which both sides knew it was intended to have.
Sufficient control 134. The facts of this case are, therefore, very far from the facts of Re Sankoh or Mwenya, where the alleged control rested simply on an assertion that the respondents could seek to persuade a third party to take steps to release the detained person. In the present case, there are written agreements requiring the return of the Respondent to UK custody upon request. In the case of the 46 Geneva Conventions, those agreements are also treaties, binding on the UK and the US in international law and the subject of domestic criminal law. 135. The line between mere persuasion and sufficient control is not black and white. Much depends on the precise facts. The courts of other common law jurisdictions have held there to be sufficient control even in the absence of an express agreement between the person with direct custody and the respondent to the writ: a) In Shipanga the writ was issued despite the absence of any formal agreement between Zambia and either SWAPO or Tanzania; the court considered that the political relationships and realities were sufficient. b) In Skelton v Jones the writ was issued on the basis that Mrs Skelton might be able to exercise influence over her father. c) In Hicks the court concluded, albeit on a summary judgment application, that it may be sufficient for the issuance of the writ that a request by the Australian government for Mr Hicks release would be effective. 136. What is clear, however, is that although an express agreement may not be a necessary requirement for the issue of a writ, it will be sufficient. That was precisely the position in OBrien, where the agreement was oral. 137. Moreover, it makes no difference that the agreement may be unenforceable at law in a domestic court. As Lord Atkinson said in OBrien at p. 624: It would be rather unfair to this [Irish Free State] Executive to assume gratuitously beforehand that it would not keep the bargain made with it, simply because that bargain was not enforceable at law. 138. Furthermore, there was in OBrien no suggestion that there had been a breach of international law, or that there was an obligation under international law for the Irish Free State to release the detainee. The degree of alleged control in this case is, therefore, a higher degree of control than that in OBrien.
47 Issue (ii): the correct approach to the doubtful control line of authority 139. The Respondents primary case is that there is sufficient control in this case. The Respondent relies on the doubtful control line of authority in the alternative. 140. The correct approach to the doubtful control line of authority is straightforward: where there is doubt over whether or not the proposed respondent to a writ has sufficient control, the writ should be issued in order to test the respondents actual degree of control. 141. The Appellants attempt to distinguish the present case from Barnardo and OBrien. However: a) Barnardo and OBrien are examples of the application of the general principle; they do not purport to limit its application to other cases where the reasons for doubt are not the same. b) The attempted distinction is in any event wrong as a matter of fact. The reasons for the doubt (if there is doubt) in this case are the same or almost the same as the reasons in Barnardo and, in particular, OBrien. c) There would be no principled basis for the Appellants desired distinction.
Doubt in Barnardo and OBrien 142. The ratio of Barnardo was that the writ may be issued in any case where the court entertains a doubt whether the respondent has custody or control. Lord Neuberger MR in the Court of Appeal accurately summarised the principle to be derived from Barnardo at [28]: 28. The reasoning of the House of Lords is well summarised in the speech of Lord Herschell at [1892] AC 326, 339. He said that a writ of habeas corpus should not be 'used as a means of compelling one who has unlawfully parted with the custody of another person to regain that custody, or of punishing him for having parted with it', but that where 48 'the court entertains a doubt whether' the respondent to the application has indeed 'ceased to have custody over the [person] alleged to be detained', then '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.'
143. These principles were applied in OBrien, where the reasons for the doubt were very different to those in Barnardo. There were two broad reasons for doubt in OBrien: a) The uncertainty over the nature of the arrangement between the Irish Free State Government and the Home Secretary. b) The uncertainty over whether the Free State Government would comply with its agreement. As set out above, the court proceeded on the basis that it was right to assume that the Free State Government would keep its bargain. 144. The Appellants characterise OBrien as a case of contradictory evidence before the Court (Appellants case, para. 4.25(iii)). As to this: a) The only judge who described the respondents statements as contradictory, and whose reasoning depended on that finding, was Scrutton LJ at 392. b) Bankes LJ at 381 decided the case on the basis that there was doubt how far, if at all, by arrangement with the Free State Government the body of the applicant is under the control of the Home Secretary an issue which he considered to be left open by the respondents affidavit, rather than subject to contradictory evidence. c) Atkin LJ at 398-399 considered that the Home Secretarys affidavit evidence that the applicant was in the control of the governor of the prison, and not subject to the Home Secretarys orders, was by no means inconsistent with an agreement with the Free State Government to return on request (emphasis added). The statement in Parliament which Scrutton LJ considered to be contradictory was said to 49 strengthen the applicants case, but Atkin LJ considered the main support for the applicants position to be the words of the order itself. d) It is therefore wrong to characterise OBrien as a case which turned on contradictory statements.
Doubt in this case 145. In the present case, there are two reasons why there may be doubt: a) There may be doubt over the true meaning of the Geneva Conventions and the MoUs, and in particular whether they require the US to return the Respondent upon request by the UK. b) There may be doubt over whether the US will comply with its undertakings. 146. These possible reasons for doubt are indistinguishable from the reasons for doubt in OBrien. There is no logical distinction between uncertainty over the nature of the agreement in OBrien, and uncertainty over the meaning of either the Geneva Conventions or the MoUs in this case. 147. Similarly, the doubt (if there is doubt) over whether the US would comply with its obligations under the Geneva Conventions or the MoUs is the same kind of doubt as was referred to in OBrien in relation to whether the Free State would comply with its agreement. Any doubt in this case should be treated in the same way: i.e. the Court should assume that the US will comply with its undertakings. 148. The Appellants describe this case as one in which: the evidence establishes that the applicant is detained by a foreign sovereign state, to whom the respondent could admittedly make a request for release (either by reference to an international instrument or not), but there remains necessary uncertainty as to what the response to such a request will be. [Appellants Case para. 3.14] 50 149. That description is somewhat difficult to follow: a) The Appellants appear to consider that the Court should simply assume that their view of the arrangements is correct: that, however, is precisely the issue to be tested by the issue of the writ. b) If the Appellants mean to suggest that, regardless of the content of any agreement or of its international law obligations, the US may choose not to comply with a request for the Respondents return, that is plainly an insufficient basis on which to refuse the writ. Rather, the court should assume that the US will comply with its agreements and obligations. In that respect, also, this case is no different to OBrien.
No principled basis for the distinction 150. There is, moreover, no principled basis for the Appellants desired distinction between different reasons for doubt. The distinction is difficult to understand and introduces unnecessary complexity. Where there is doubt over whether or not the proposed respondent to a writ has sufficient control, the writ may be issued to test the degree of control. It does not matter whether the reason for the doubt is that the applicant disputes the respondents evidence, or that the respondent has made contradictory statements, or some other reason. The Respondent respectfully invites the Court to adopt the analysis of Lord Neuberger MR below: 44. Given the important principle established and applied in Barnardo [1892] AC 326, I would find it very unattractive to conclude that a writ in habeas corpus cannot issue where uncertainty as to the respondent's control over the applicant arises from the effectiveness and enforceability of certain agreements, even though such a writ can (and, absent any countervailing reasons, I think normally should) issue where the uncertainty arises from a need to investigate the facts. Indeed, I am inclined to think that such a distinction (i) does not work in theory (as, in the end, the effectiveness and enforceability in practice of an agreement is a matter of fact rather than law), and (ii) cannot really survive the decision and reasoning of this court in O'Brien [1923] 2 KB 361. 51
Issue (iii): Foreign policy 151. The development of foreign policy and the conduct of foreign relations are matters of executive discretion. There is no general rule that government decisions in those fields are not justiciable (see further below), but for constitutional and practical reasons the courts have granted the executive a relatively wide margin of discretion. 152. However, this case does not concern a challenge to a discretionary decision in the field of foreign policy or foreign relations. Mr Rahmatullahs case is not a judicial review. He is not alleging that the Appellants erred in reaching a discretionary decision whether or not to seek his release. It is, rather, that they are obliged under long-established common law principles to exercise their control over him in such a way as to bring about his release from unlawful detention. No question of discretion arises. 153. It follows that foreign policy considerations would only defeat the application for a writ of habeas corpus if it were the law that the government can avoid its legal duties in circumstances where discharging those duties may interfere with foreign relations. The Appellants argument is, in effect, that even if there is sufficient control for a writ of habeas corpus to run, it should not be issued if it may affect foreign relations. 154. That was not the approach adopted in OBrien or in Shipanga. Such an approach would be incorrect. None of the cases relied upon by the Appellants support the contention that the government can avoid its legal duties towards individuals simply because discharging those duties may interfere with foreign relations: a) In R (Abbasi) v SSFCA and SSHD [2002] EWCA Civ 1598 the argument that the Secretaries of State were under a duty to seek the claimants release was rejected not because such a duty would interfere with foreign relations, but rather because on analysis there was no such duty as a matter of human rights law, international law, or public law 52 (see [69], [79] and [99]). The Secretaries of State had a discretion to seek Mr Abbasis release. It was in relation to the exercise of that discretion that the Court said at [106] that, the court cannot enter the forbidden areas, including decisions affecting foreign policy. b) Similarly, in R (Al-Rawi) v SSFCA [2008] QB 289 the suggestion that the Secretary of State was under a duty to seek the claimants release was rejected because, on analysis, there was no such duty as a matter of discrimination law or human rights law (in particular at [87] and [114]). As in Abbasi, the Court did not suggest that the forbidden territory was relevant to whether or not there was an enforceable legal duty. Rather, the forbidden territory was again discussed in the different context of the claimants challenge, on Wednesbury grounds, to the Secretary of States exercise of discretion in deciding not to seek the claimants release (in particular, at [131]-[134]). c) In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Ferhut Butt (1999) 116 ILR the applicant sought an order that the Secretary of State must make representations to the President of Yemen that a flawed criminal trial in progress in Yemen should be halted and that a retrial should be ordered. The decision over what representations (if any) to make was purely a matter of foreign policy: there was no duty on the Secretary of State to make such representations. d) In R (Manickavasagam) v Secretary of State for the Home Department [2001] EWHC Admin 1028 the court held that there was no duty upon the Secretary of State to ensure that other nations comply with their human rights obligations. Again, that decision was based on an analysis of ordinary human rights law, not on the forbidden territory. e) It does not assist the Appellants to establish, in reliance on extracts from Secretary of State for the Home Department v Rehman [2003] 1 AC 153, that the question of whether something is in the interests of this countrys foreign relations is a matter for the executive. In an 53 application for a writ of habeas corpus, the question of whether the issue of the writ to protect liberty would be in the interests of the United Kingdoms foreign relations simply does not arise. f) R (Al Haq) v SSFCA [2009] EWHC 1910 was an attempt to achieve a wholesale change of the United Kingdoms foreign policy towards Israel. As the Court stated at [45]: This case is readily distinguishable from those in which a claimant is asserting a readily identifiable right, such as a right in certain circumstances to claim asylum or the right to a fair trial. g) Similarly, R (CND) v Prime Minister [2002] EWHC 2777 was concerned with matters of high policy, namely the lawfulness of the decision to go to war in Iraq. It is not authority for the proposition that the government can avoid its legal duties towards individuals simply because discharging those duties may interfere with foreign relations. 155. The key difference between this case and Abbasi or Al-Rawi is that Mr Rahmatullah is (or is sufficiently arguably) within the Secretary of States control such as to be entitled to the writ of habeas corpus. (That was expressly not the position in Abbasi: see [77]). Mr Rahmatullah does not challenge the exercise of discretionary foreign policy decisions or the use of diplomacy to persuade the American government. As Lord Neuberger MR stated in the First J udgment at [51]: It is right to add that the notion that the issue of a writ of habeas corpus in this case would be inconsistent with the reasoning in Abbassi [2002] EWCA Civ 1598 would be hard to maintain. The argument in Abbassi [2002] EWCA Civ 1598, para 79, was that, as a result of legitimate expectation, the Foreign Secretary owes Mr Abbasi a duty to exercise diplomacy on his behalf, whereas the argument here is simply that there is enough of a possibility that the Secretaries of State have control over the applicant to justify a writ of habeas corpus. It is important to have in mind that both Abbasi [2002] EWCA Civ 1598 and Al-Rawi [2008] QB 289 were, as observed above, applications for judicial review. There was as I understand it no suggestion in either case that a writ of habeas corpus might issue. As Laws LJ put it, at [2011] EWHC 2008 (Admin), paras 20 and 23, if in the 54 present case I were to conclude that the Secretar[ies] of State [were] 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 Secretar[ies] of State [are] properly amenable to the writ. This central part of the case requires us to consider the use of habeas corpus as a vehicle for enquiry. 156. Furthermore, even in cases involving a challenge to a discretionary decision, the fact that the decision may engage foreign relations does not act as an absolute bar to judicial review. Rather, the issue of justiciability depends, not on general principle, but on subject matter and suitability in the particular case (Abbasi at [85]). The Court in Abbasi held that the claimants did have a legitimate expectation that the Secretary of State would consider making representations on their behalf, albeit that the actual decision over whether or not to make representations was a discretionary decision. However, even in the context of a discretionary decision in the realm of foreign policy the Court suggested that there may be scope for judicial review: 104. The extreme case where judicial review would lie in relation to diplomatic protection would be if the Foreign and Commonwealth Office were, contrary to its stated practice, to refuse even to consider whether to make diplomatic representations on behalf of a subject whose fundamental rights were being violated. In such, unlikely, circumstances we consider that it would be appropriate for the court to make a mandatory order to the Foreign Secretary to give due consideration to the applicant's case. 105. Beyond this we do not believe it is possible to make general propositions. In some cases it might be reasonable to expect the Secretary of State to state the result of considering a request for assistance, in others it might not. In some cases he might be expected to give reasons for his decision, in others he might not. In some cases such reasons might be open to attack, in others they would not. 157. See also [106(v)], which recognises that there may be cases in which the Courts will require more than the mere consideration of a request for assistance: 55 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. 158. Applied to the present case, there is no basis for refusing any remedy on the grounds of a forbidden area of foreign relations. As Maurice Kay LJ put it in the First J udgment at [55-56]: 55. the issue of a writ of habeas corpus in this case does not transgress or modify the principle of a "forbidden area" which is beyond judicial concern. I acknowledge that there are such areas and that, although they undergo reconsideration from time to time, there are still matters of foreign policy which are not susceptible to judicial review. Abbasi is perhaps the best example of both the continuing forbidden areas and the reduction of judicial non-intervention. The Court expressly rejected the proposition that there is no scope for judicial review of a refusal to render diplomatic assistance to a British subject who is suffering violation of a fundamental human right as a result of the conduct of the authorities of a foreign state: paragraph 80. However, the present case does not concern an application for judicial review and, as the Master of the Rolls has explained, Mr Eadie is seeking to rely on the "forbidden areas" jurisprudence in a more subtle way. 56. The circumstances of this case convince me that reliance is misplaced. On the face of it, 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".
Issue (iv): Act of State 159. The Act of State doctrine also has no application in a habeas case. 160. As the Appellants Case accepts at paragraph 3.32, The doctrine is not absolute and the legitimacy of foreign sovereign state action may be 56 justiciable in certain limited circumstances. One such circumstance is where fundamental human rights are in issue. 161. In Oppenheim v Cattermole [1976] AC 249 the House of Lords considered whether a decree passed in Germany in 1941 depriving J ews who had emigrated from Germany of their citizenship should be recognised by the English court. Lord Cross said at 277H: A judge should, of course, be very slow to refuse to give effect to the legislation of a foreign state in any sphere in which, according to accepted principles of international law, the foreign state has jurisdiction. He may well have an inadequate understanding of the circumstances in which the legislation was passed and his refusal to recognise it may be embarrassing to the branch of the executive which is concerned to maintain friendly relations between this country and the foreign country in question. But I think as Upjohn J thought (see In re Claim by Herbert Wagg & Co Ltd [1956] Ch. 323 , 334) that it is part of the public policy of this country that our courts should give effect to clearly established rules of international law. Of course on some points it may be by no means clear what the rule of international law is. Whether, for example, legislation of a particular type is contrary to international law because it is confiscatory is a question upon which there may well be wide differences of opinion between communist and capitalist countries. But what we are concerned with here is legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the state passing the legislation can lay its hands and, in addition, deprives them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all. 162. The Appellants are wrong to suggest that the Act of State doctrine will apply unless the breach of international law is plain and acknowledged, a principle which the Appellants ascribe to the speech of Lord Nicholls in Kuwait Airways Corp v Iraqi Airways Co (Nos. 4 and 5) [2002] 2 AC 883 at [26]. It is clear that Lord Nicholls was not intending to limit the exceptions to the Act of State doctrine in the manner suggested by the Appellants: This is not to say an English court is disabled from ever taking cognisance of international law or from ever considering whether a violation of international law has 57 occurred. In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. Lord Wilberforce himself accepted this in the Buttes case, at p 931D. Nor does the non-justiciable principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome not in doubt. That is the present case. 163. The correct approach to the Act of State doctrine was explained in Abassi. The Court cited the extract from Oppenheim v Cattermole set out above. It then stated at [53]: This passage lends support to Mr Blake's thesis that, where fundamental human rights are in play, the courts of this country will not abstain from reviewing the legitimacy of the actions of a foreign sovereign state. A more topical support for this proposition can be can be derived from the exercise that the court has to undertake in asylum cases, where the issue is often whether the applicant for asylum has a well-founded fear of persecution if removed to a third country. In such circumstances consideration of the claim for asylum frequently involves ruling on allegations that a foreign state is acting in breach of international law or human rights. 164. The Court held at [58] that it was open to it to consider the contention that Mr Abbasis detention constituted arbitrary detention contrary to the fundamental norms of international law.
165. Further and in any event, the Act of State doctrine only applies to the acts of another government within its own territory: see Lord Wilberforce in Buttes Gas & Oil v Hammer (No. 3) [1982] AC 888 (HL) at 933. As the Respondent is being detained by the United States outside of its territory, the doctrine can have no application to this case.
Response to Appellants submissions 58 166. The Appellants make a number of submissions in their Case. Most have already been dealt with above. The answers to the central remaining points are as follows:
a) (1) The appellants must thus be in a position to do two things: first, produce the person concerned to the Court as the writ requires; and secondly, legally justify the detention (Appellants case, para. 4.1). Both requirements are satisfied. For the reasons set out above, the Respondent is in the control of the Appellants, pursuant to the MoUs and the Geneva Conventions (or this is at least doubtful). Further, the Appellants have not sought to justify the Respondents detention as lawful. As Lord Neuberger MR explained in the Court of Appeal at [25]: the applicant has established, for the purpose of these proceedings, that he is being unlawfully detained. That is because 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. There is, quite rightly, no challenge by the Secretaries of State, either as to that principle or as to the applicant's right to rely on it in this case.
b) (2) control is not established by the possibility that the person or State in fact detaining (and thus in fact able to produce the body and advance legal justification for the detention) may respond favourably to a request for transfer of the person (Appellants case, para. 4.2) (emphasis in original). This is common ground. Some additional evidence is required. In this case, the Respondent relies upon the MoUs and the Geneva Conventions as agreements under which the US undertook to return a person in the position of the Respondent upon request. This is not a case of a request simply being made in the context of diplomatic relations. c) (3) it is obviously and highly relevant to the question of control that the respondent is in fact in the custody of an independent, sovereign 59 State: the US it cannot properly be said that a Secretary of State has control for the purposes of the habeas jurisdiction if his ability to produce the body and account for the legality of the detention is dependent on the reaction of another sovereign state to diplomacy (Appellants case, para. 4.4). This proposition cannot be reconciled with the decision in OBrien. Mr OBrien was held by the authorities of an independent and sovereign state: the Irish Free State. The Appellants do not suggest that OBrien was wrongly decided. Further, the issue is not the reaction of another state to complex diplomatic negotiations, but to a request under the Geneva Conventions (i.e. an international treaty) and/or under MoUs negotiated for the purpose of ensuring full compliance with those Conventions. d) (4) the Respondents demand for a request is far from a simple matter. The Court of Appeal had to make decisions on matters that are highly political and controversial, and governed exclusively by issues of international law (Appellants case, para. 4.6). The writ of habeas corpus is issued as of right. Its purpose is to secure liberty from arbitrary detention regardless of political controversy. The history of habeas corpus contains many cases of the utmost political and diplomatic difficulty. Well-known examples include Sommersetts Case (1772) 20 St Tr 1 (freeing of a slave) and OBrien itself. The common law writ remains valuable and important precisely because it protects liberty from arbitrary interference regardless of political concerns. Shipanga is a good example of such a case. It demonstrates the continuing importance of the writ of habeas corpus (and the decisions in Barnardo and OBrien) in cases involving highly political and controversial deprivation of liberty, throughout the common law world. e) Further, the Geneva Conventions are incorporated into domestic criminal law by the Geneva Conventions Act 1957, so compliance with those Conventions is not exclusively an issue of international law. Further, the Courts are well used to examining international instruments. This is routinely done where the state wishes to rely on a 60 Memorandum of Understanding in support of a decision to extradite or deport, for example in RB (Algeria). f) (5) the exercise of the habeas jurisdiction should respect, and cannot by a fiction obviate the need to respect, the principles governing the conduct of foreign relations with other sovereign states For the reasons set out above, the grant of the writ in this case did not trespass into the forbidden area. g) (6) the effect of a court order will be to compel a request or representations for release from the detention of a foreign sovereign state It goes without saying that the UKs relations with the US are of the utmost importance. It is also well known that there have been recent sensitivities and concerns surrounding those relations, particularly as a result of steps the Government has been ordered by the Courts to take (Appellants case, para. 4.12). It is common ground that in order to make an effective return to the writ, the Appellants needed to request the return of the Respondent to UK custody. The Appellants case appears to be that this factor of itself takes the case inside the forbidden area. This would render the writ useless against the strategy (which has been used for hundreds of years) of moving a person outside the jurisdiction in the hope of evading the reach of the writ. If formal arrangements are made with another State for a person to be returned to UK custody on request, the Court is entitled to proceed against the Secretary of State on the basis that he or she retains control. h) As to the comment about the UKs relations with the US, it is notable that it is not suggested that this case has caused or will cause any diplomatic harm. The US authorities well understand that the UK courts are simply fulfilling their constitutional role of requiring the UK Government to account for its responsibility for the applicant's detention, and to attempt to get him released (Second J udgment, per Lord Neuberger MR at [17]). 61 i) (7) Abbassi and Al-Rawi (Appellants case, para. 4.17): These cases are dealt with above. j) (8) there are at the least live issues as to whether provisions of the MoUs permit the UK simply to request transfer of prisoners previously transferred to the US. That is a feature which adds to the complexities of making a request to the US (Appellants case, para. 4.17) The Respondents position on the MoUs is set out above. It is notable that the Appellants advance no positive case on the correct meaning and effect of the MoUs. Nor have the Appellants advanced any case on the Geneva Conventions. There are no real difficulties with understanding the relevant position under the MoUs or the Geneva Conventions. k) the sole relevance of the MoUs, and the Geneva Conventions and the domestic legislation relating to them, is that they provide the backdrop for a fact which is in any event accepted: the Government had and has the ability to make a request of the US for the transfer of the Respondent in order that he be released. It did not need the MoUs in order to base that ability. Whether the assertion of their application to the present Respondent would enhance or detract from such a request is a matter of diplomatic judgment (Appellants case, para. 4.20). The relevance of the Geneva Conventions and the MoUs is that they provide for the basis of the request, and how the US must answer the request, and therefore whether the Respondent remains in the control of the Appellants. This is a question of fact for the Court. l) (9) the Court should not trespass, or at least be very slow before trespassing, into the following particular areas the legality under international law of the actions of the US the legality of the current detention by the US (Appellants case, para. 4.21). Further: The Court of Appeal did not even seek to examine or rule on the legality of the current detention of the Respondent by the US (Appellants case, para. 4.23(i)). The Court is not being asked to rule on the actions of the US, only on whether there appears to be a sufficient degree of control (or uncertainty about control) to issue the writ against the Secretaries of State. As to the legality of the current detention by the US, the 62 Appellants have not sought to defend its lawfulness, and therefore it was not for the Court of Appeal to rule on the lawfulness of the detention. m) (10) Appellants attempt to distinguish OBrien (Appellants case, para. 4.24-4.27). This has been dealt with above. n) (11) The habeas jurisdiction has traditionally been regarded as leading to a remedy as of right. However there must be scope for a further stage at which the UKs broader public interests in international affairs and/or national security could be considered. Otherwise (on the basis of the hypotheses above), the writ might be issued in circumstances in which to do so would be profoundly damaging to the public interest (Appellants case, para. 4.29). The Appellants proposition is that the Court should no longer issue the great writ as of right where a person is unlawfully detained and in the control of a person in the jurisdiction. The Court should first hear from the detainer as to whether release would harm the UKs broader public interests and permit a person to be kept in unlawful confinement, presumably forever, if such interests were engaged. No doubt it would also be argued that the Court should defer to the Appellants in the assessment of the UKs broader public interests. Such an outcome would be inconsistent with long-standing principle and would lead to habeas ceasing to be a useful remedy for upholding the rule of law. Habeas has been valuable over several hundred years because it is not a discretionary remedy that can be refused on grounds of political inconvenience. The fact that the writ is non-discretionary assists in the protection of judicial independence from executive criticism and promotes the protection of basic liberties. The consequences of the Appellants argument are be likely to be particularly damaging if applied in other common law jurisdictions where the rule of law is far from secure. o) In any event, no evidence of any consequences profoundly damaging to the public interest have been advanced here; there have been none. 63
The appeal against the Second Judgment of the Court of Appeal 167. On the return date, the Court of Appeal held that the Appellants had made a sufficient return to the writ. In reaching that conclusion, the Court of Appeal placed considerable reliance on the evidence of Mr Drew as to the meaning of Mr Lietzaus letter. Lord Neuberger MR held: 11. [] While we are not bound to accept such evidence, it seems to me that it would be dangerous to reject it in a case, such as this, where it does not appear unconvincing and there is nothing to contradict it. The language of diplomats representing different states discussing a problem can, no doubt, be very different from that of lawyers representing different interests discussing a problem or even the same problem, particularly when, as here, the problem may be one of some sensitivity. 12. Accordingly, a judge, especially one sitting in a domestic court, should be wary of placing an interpretation on a letter such as that of 8 February, which differs from that proffered by a responsible person at the FCO, giving formal evidence on its behalf. 13. Even if we were to accept Ms Lieven's contention that the 8 February letter left the door open, then, quite apart from the point made in para 9 above, it seems to me that it would be very doubtful whether a domestic court should start dictating to the FCO or the MoD as to how to communicate with a foreign government, and in particular how a letter relating to a potentially sensitive diplomatic issue should be expressed. Doing so would risk trespassing into the forbidden areas referred to at [2011] EWCA Civ 1540. As explained at [2011] EWCA Civ 1540, para 48, Mr Eadie did not suggest any such difficulty in relation to the original request, and that renders his reliance on the point at this stage that much more forceful.
168. In consequence: 16. The melancholy truth is that the events since we handed down judgment appear to establish that (i) when the UK defence forces handed over the applicant to the US authorities in questionable circumstances in 2004 (see [2011] EWCA Civ 1540, para 9), they most unfortunately appear to have sold the pass with regard to their ability to protect him in the future, and (ii) Mr Parmenter of the MoD turns out to have been right when he said that he thought that the issue of a writ of habeas corpus would, in terms of its practical outcome for the applicant, be a 'futile course of action' (see [2011] EWCA Civ 1540, para 21).
64 17. That does not mean that the issue of the writ of habeas corpus was a pointless exercise in this case: it performed its minimum function of requiring the UK Government to account for its responsibility for the applicant's detention, and to attempt to get him released. This case is an illustration of (i) the court performing perhaps its most vital role, namely to ensure that the executive complies, as far as it can, with its legal duties to individuals, in particular when they are detained, and (ii) the limits of the powers of the court, as a domestic tribunal, in that its reach cannot go beyond its jurisdiction, and that jurisdiction does not extend to the US military authorities in Afghanistan.
169. The Court of Appeals second judgment was wrong in two respects: a) In accepting the evidence of Mr Drew as to the meaning of Mr Lietzaus letter, the Court wrongly failed to have proper regard to the ambiguities in the letter and the inadequacies of Mr Drews evidence. b) In accepting the evidence of Mr Drew as to the meaning of Mr Lietzaus letter, the Court wrongly considered that taking issue with Mr Drews interpretation of the letter would be to enter the forbidden area of foreign relations.
Ground 1 Ambiguity in evidence 170. The first ground relates to the analysis at paragraphs 8-12 of the Second J udgment. Since the Habeas Corpus Act 1816, the court has had the power to inquire into the facts on a return to a writ of habeas corpus. The burden of proving the facts on a return is on the respondent to the writ. 171. Furthermore: the appropriate standard is that which applies generally in civil proceedings, namely proof on a balance of probabilities, the degree of probability being proportionate to the nature and gravity of the issue. As cases such as those in the present appeals involve grave issues of personal liberty, the degree of probability required will be high. (R v Home Secretary, ex parte Khawaja [1984] A.C. 74 per Lord Fraser at 97G).
Liberty is at stake: that is, as the court recognised in Bater v Bater [1951] P. 35 and in Hornal v Neuberger Products Ltd [1957] 1 Q.B. 247, a grave matter. The reviewing court will therefore require to be 65 satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. (Ibid, per Lord Scarman at 113G).
172. Where there is any ambiguity or incompleteness in the return, the Courts have not hesitated to require better evidence. For example, in Barnardo, a detailed factual examination took place as to whether Dr Barnardo had in fact lost control of the child. Similarly, in Shipanga, the Supreme Court of Zambia insisted on clear evidence as to whether or not the Republic of Tanzania would or would not return the detainee to Zambia. 173. Mr Lietzaus letter contained obvious ambiguity. If anything, it appeared to have been crafted to avoid refusing to hand over the Respondent: a) The letter was drafted with care, in the knowledge that it would be disclosed to the Court and the Respondent. b) The letter did not refuse to hand the Respondent to the United Kingdom. c) Rather, the letter: i) summarised the normal approach adopted by the United States to release; ii) indicated that the Respondent could be released, subject to proper arrangements being made; iii) used language which made clear that the United States remained open to further discussion; Normally, unless there is an obstacle to repatriation, transfer discussions in circumstances such as these would involve the detainees home country. We have already received a request from the Government of Pakistan for Rahmatullahs repatriation, and we believe it may be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan (emphasis added)
iv) ended with an explicit invitation to further discussions. 66 d) The letter was therefore consistent with the indication given by the United States at a meeting on 24 J anuary 2012 that the response might describe the procedures the US authorities would need to go through with the UK to determine if release of YR were appropriate, and invite us to begin a dialogue (Mr Drews second witness statement paragraph 6). e) Nothing in the letter indicates that the response was a final one, or that the US was unwilling to return the Respondent to UK custody. To the contrary, the US had indicated in the 24 J anuary 2012 meeting how its letter ought to be interpreted. 174. Furthermore, Mr Drew did not address in his evidence why, if the United States had intended to decline to hand over the Respondent: a) they did not set that out in clear terms; and b) instead, they explicitly invited the United Kingdom to enter into further discussions. 175. In the circumstances: a) there was insufficient basis to conclude, to the required standard of proof, that the United States had refused to hand over the Respondent; b) the evidence suggested that the United States was keen to avoid refusing to hand the Respondent over, not least because this would involve the commission of a grave breach of Geneva IV, and was instead open to further dialogue on the subject; c) the writ was issued in order to test the Appellants degree of control, and that if there remains ambiguity then it will be necessary for the degree of control to be further tested; d) the precise wording of any further communication with the United States is a matter for the Appellants, so long as they properly establish whether or not the United States will comply with a request for the Respondents return; and e) the Court erred in considering that the United Kingdom did not have control over the Respondent. 67
Ground 2: Forbidden area? 176. The Second Ground relates to the analysis of Maurice Kay LJ (with whom Lord J ustice Sullivan agreed) at paragraph 20. The Court there held that to take issue with Mr Drews interpretation of the letter would be to, take us into the forbidden area. 177. As the Court of Appeal correctly held in the First J udgment, at [52], the forbidden area has no application in an application for habeas corpus. It is important to recall that the Respondents case is that he is being unlawfully held, and that the Appellants had control over his detention. The Court held that, despite the seriousness of those matters, the application did not trespass into the forbidden area. 178. The issue which arose on the return was much narrower, namely whether Mr Drews interpretation of Mr Lietzaus rather ambiguous letter was correct. There is no reason of principle why, if the forbidden area was not entered at the earlier stage, it would be entered at this later point. 179. Factual questions relating to the likely future conduct of a foreign state or the interpretation of a diplomatic letter do not fall within the forbidden area in cases involving the liberty of a person detained without charge or trial for many years, or other serious breaches of fundamental rights. For example, where a person resists deportation on the grounds that he may face inhuman or degrading treatment abroad it is for the court to examine the true factual position in the foreign country: it is not bound to accept the evidence of the Secretary of State. See, for example, AS & DD v Secretary of State for the Home Department [2008] EWCA Civ 289 at [33]: It follows that SIAC was not bound to accept every statement of opinion expressed by Mr Layden [the Secretary of States witness]. On the contrary, it was SIACs responsibility, not that of Mr Layden, to determine the facts, including the key question of fact, namely what risks the respondents would be exposed to on return to Libya in circumstances in which there is in place an MOU.
The same principle applies a fortiori in habeas applications. 68 180. In any event, as Maurice Kay LJ held at [56] of the First J udgment, in order to successfully rely on the forbidden area a respondent must bring evidence to explain why the course which the court is being invited to take would or might damage the foreign relations of this country. There was in this case no evidence that disagreeing with Mr Drews interpretation of Mr Lietzaus letter would or might damage foreign relations. 181. In the circumstances, the Court erred in holding that to disagree with Mr Drews interpretation would be to enter the forbidden area.
Conclusion 182. The Respondent accordingly invites the Supreme Court to dismiss the Appellants appeal against the First J udgment, and to allow the Respondents appeal against the Second J udgment.