1

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:
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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.
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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.
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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:
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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.
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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.
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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.
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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.
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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):
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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).

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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.