Hussein, R (on the application of) v Secretary of State for Defence [2014] EWCA Civ 1087

[2014] EWCA Civ 1087

Case No C1/2013/0892

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2013] EWHC 95 (Admin)

ON APPEAL FROM THE ADMINISTRATIVE COURT

HALLETT LJ & COLLINS J

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 31 st July 2014

Before

LORD JUSTICE TOMLINSON

LORD JUSTICE LLOYD JONES

LORD JUSTICE RYDER

Between

THE QUEEN (HAIDAR ALI HUSSEIN)Appellant

THE SECRETARY OF STATE FOR DEFENCERespondent

(Transcript of the Handed Down Judgment of

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Tim Owen QC and Danny Friedman QC (instructed by Public Interest Lawyers) for Appellant

James Eadie QC, Sam Wordsworth QC and Amy Sander (instructed by the Treasury Solicitor) for Respondent

Hearing Hearing dates : 10, 11, 12 June 2014

Judgment

LORD JUSTICE LLOYD JONES :

[1]This case is now concerned with a policy of the Secretary of State for Defence (“the Secretary of State”) adopted in May 2012 authorising a technique known as challenge direct for use in the interrogation of persons captured by UK forces in situations of armed conflict. The Appellant seeks judicial review of the policy on the ground that, on its face, it is unlawful in that it constitutes inhumane treatment, contrary inter alia to Common Article 3 of the Geneva Conventions of 1949, alternatively on the ground that the policy is unlawful because there is an unacceptable risk that it will be exercised in a way that is not lawful having regard to the circumstances in which it may be used.

[2]The proceedings were commenced in September 2011. At that time the challenge was to a questioning technique known as the harsh approach. In May 2012 the Secretary of State replaced the policy authorising the harsh approach with a new policy authorising challenge direct. The proceedings were subsequently amended and have continued as a challenge to the policy authorising challenge direct.

[3]The original claimant in these proceedings was Mr. Ramzi Saggar Hassan, an Iraqi national who had been arrested and questioned by UK forces in Iraq in April 2007. He alleged that while detained he had been ill-treated both physically and by being shouted at for substantial periods of time during questioning. In addition to bringing these proceedings he was a co-claimant in a claim which successfully sought a public inquiry into UK detention policy and practices in Iraq and he also brought proceedings for damages in respect of the ill-treatment which he alleged he had suffered. The private law proceedings were settled.

[4]The present claimant, Mr. Haidar Ali Hussein, was substituted in these proceedings by consent by order made on 12 November 2012. Mr. Hussein is an Iraqi national who was arrested by UK forces in December 2004. He alleges that during his detention he was physically ill-treated both before and during his questioning and was subjected to substantial periods of shouting. He was a co-claimant with Mr. Hassan in the proceedings seeking a public inquiry. He has also made a private law claim for damages in respect of his treatment by UK forces.

[5]The Secretary of State in his Acknowledgement of Service asserted that Mr. Hassan lacked standing to bring these proceedings. When granting permission to apply for judicial review Ouseley J. indicated that the Secretary of State should be permitted to raise the issue of standing at the substantive hearing.

[6]The Divisional Court (Hallett LJ and Collins J) firmly rejected both grounds. It also expressed its considerable doubts about the standing of the Appellant to bring these proceedings, although it did not decide that point. The Appellant now appeals to this court with the leave of the Court of Appeal.

Challenge Direct

[7]It is necessary to say something about the evolution of the policy challenged in these proceedings. The challenging approach with which these proceedings are concerned has its origin in an earlier permitted method of questioning known as the harsh approach. The harsh approach was described by Collins J. in the Divisional Court as follows: “There can be no doubt that the practices carried out under the guidelines then in place were unacceptable. The harsh technique included the following elements which could be deployed as the questioner considered necessary. The shouting could be as loud as possible. There could be what was described as uncontrolled fury, shouting with cold menace and then developing, the questioner’s voice and actions showing psychotic tendencies, and there could be personal abuse. Other techniques were described as cynical derision and malicious humiliation, involving personal attacks on the detainee’s physical and mental attitudes and capabilities. He could be taunted and goaded as an attack on his pride and ego and to make him feel insecure. Finally, he could be confused by high speed questioning, interrupting his answers, perhaps misquoting his reply.” (para 7)

[8]One of the persons to whom the harsh approach was applied was Baha Mousa who in September 2003 was taken into custody by UK forces in Iraq and, in the course of detention for the purposes of tactical questioning, died. In his report Sir William Gage had this to say about the harsh approach: “The teaching of the “harsh” permitted insults not just of the performance of the captured prisoner but personal and abusive insults including racist and homophobic language. “Harsh” was designed to show anger on the part of the questioner. It ran the risk of being a form of intimidation to coerce answers from prisoners. It involved forms of threats which, while in some senses indirect, were designed to instil in prisoners a fear of what might happen to them, including physically. Insufficient thought was given to whether the harsh approach was consistent with the Geneva Convention.” (para. 6.346) [1/588]

[9]In his report Sir William Gage distinguished between the use of the harsh approach in tactical questioning (routinely conducted at or close to the point of capture but which may be carried out later if the circumstances require) and interrogation (carried out by specialist trained troops in facilities approved for the detention of captured persons and equipped and authorised for interrogation). Sir William found it entirely unacceptable that the tactical questioning policy should be silent as to whether or not the harsh approach was permitted as part of tactical questioning. As to whether the harsh approach was appropriate at all, Sir William emphasised that it was not for him to make any kind of rulings as to the legality of the harsh approach (para. 16.176). However, he stated that he was clear that the harsh approach at the very least came close to the edge of what was legally permissible in the treatment of captured persons. He noted that it would seem that the harsh policy would permit the interrogator cynically to deride the captured enemy commander as an incompetent and perhaps cowardly leader because of the circumstances of the capture of his unit, but this was said not to be an insult because it derided the commander’s performance and was not an insult to his person. He observed that this was a very fine line.

[10]Sir William Gage concluded that the harsh approach no longer had a place in tactical questioning. So far as its application in interrogation was concerned, he concluded that, even as recently redefined, it carried high legal risk. There were clear arguments that its use may be contrary to the Geneva Conventions. He concluded that, to the extent that the Ministry of Defence (“MoD”) considered that the harsh approach could still lawfully be used in interrogation, there was a need for very clear guidance to be given within the interrogation policy and in training as to the proper limits of the harsh approach. In light of the legal and other risks in the use of the harsh approach, he considered that specific Ministerial approval should be sought before the harsh approach was approved for use in any operational theatre. [16.205]

[11]While Sir William Gage was preparing his report, the MoD wrote to the Inquiry on 7 March 2011 stating that it believed that there was a need to retain elements of the harsh approach in both interrogation and tactical questioning and that by applying strict parameters it considered that the legal risks could be effectively managed. It drew attention to the distinction drawn by the 2010 MoD Interrogation Policy between two types of harsh approach, “loud harsh” and “cynical/sarcastic harsh”. It maintained that so far as the loud harsh approach was concerned, this was intended to be used where there was the need to gain the attention of a person who was being questioned and who deliberately ignored the questioner or was otherwise not engaging with him. It continued:

“Within clear and stringent parameters the MoD considers that a requirement exists for a questioner to raise his voice or even to shout at a subject if it is necessary to refocus him on the questions being asked. The strict parameters which the MoD considers are necessary properly to control the use of a refocusing approach are: • The approach should only be used in circumstances where it is necessary and appropriate to refocus a CPERS [an acronym for captured persons] on the questions which he is being asked. • The frequency with which allowed approach is used to refocus the subject of tactical questioning or interrogation should be limited to [REDACTED]. • The duration of the approach should be limited so that it lasts a maximum of [REDACTED]. • Speech must be coherent and translated. • The questioner must not shout into the subject’s ear. • There must be no violence or threat of violence. • There must be no intimidation of any kind. • The questioning must not seek to frighten or instil fear. • There must be no threats of any kind, whether expressed or implied. • There must be no coercion of any kind. • The content must not be insulting, humiliating or degrading. • The captured person’s attributes must not be ridiculed (e.g. race, religion or gender). • The questioner must not touch the captured person.” • The approach should only be used in circumstances where it is necessary and appropriate to refocus a CPERS [an acronym for captured persons] on the questions which he is being asked. • The frequency with which allowed approach is used to refocus the subject of tactical questioning or interrogation should be limited to [REDACTED]. • The duration of the approach should be limited so that it lasts a maximum of [REDACTED]. • Speech must be coherent and translated. • The questioner must not shout into the subject’s ear. • There must be no violence or threat of violence. • There must be no intimidation of any kind. • The questioning must not seek to frighten or instil fear. • There must be no threats of any kind, whether expressed or implied. • There must be no coercion of any kind. • The content must not be insulting, humiliating or degrading. • The captured person’s attributes must not be ridiculed (e.g. race, religion or gender). • The questioner must not touch the captured person.”

[12]In an Addendum to his report, Sir William Gage made the following observations on the letter of 7 March 2011:

“I have carefully considered the “strict parameters” necessary properly to control the use of the harsh approach. Obviously, they represent an improvement on the previous position. Nevertheless, I have considerable reservations as to how in practice instructors will be able to demonstrate and teach sarcasm and cynicism that does not lead and amount to insulting the prisoner, and greater reservations on the practicality on ensuring that such training is adhered to. For instance, the parameters for the “loud harsh” prohibit “intimidation” and “coercion” of any kind. This will involve the questioner/interrogator in treading a fine line between what is legitimate and what is intimidation or coercion. It will also involve some subjective judgement by the instructors of the subject of the questioning and interrogation. Much of the same can be said of the parameters for the “cynical/sarcastic harsh”

. In my opinion the risks of using the harsh approach, whether “loud” or “cynical/sarcastic” will remain. In the circumstances, although I recognise that the MoD, no doubt for good reason, wishes to retain elements of the harsh approach, my firm conclusion is that its use in the tactical questioning process carries too great a risk. So far as interrogation is concerned, I remain sceptical about the practicalities of eliminating the risks to which I have referred. But I recognise that the new parameters are an improvement on the previous position…” [16.208, 16.209]

[13]Following the publication of the report of Sir William Gage’s inquiry on 8 September 2011 the MoD reviewed its policy and formulated a new framework for tactical questioning and interrogation which it considered to be in line with the report’s recommendations. In particular it adopted a new approach entitled the Challenging approach. The current version is to be found in “MoD Policy for Interrogation” dated 16 May 2012. Paragraph 23 provides: “However, regardless of the prevailing legal environment, MOD Strategic Detention Policy requires that UK Armed Forces will treat all CPERS humanely at all times and will, as a minimum, apply the standards articulated in Common Article 3. In international armed conflict, certain specific categories of CPERS, such as PWs or detained or interned civilians, will qualify for extra protections under Geneva Conventions III or IV and the Additional Protocols where applicable … Breach of any of the standards articulated in Common Article 3 will constitute a war crime in both an international and a non-international armed conflict as a result of the Rome Statute of the International Criminal Court which was brought into UK law by the International Criminal Court Act 2001.” (original emphasis) The challenge direct policy is set out in Annex B: “THE STANDARDS 2 As a matter of policy and by law, UK Armed Forces will as a minimum treat all CPERS detained during international or non-international armed conflict or other military deployments in adherence to Common Article 3. Additional protections are provided to entitled civilians by virtue of their protected status under Geneva Convention IV. Prisoners of War (PWs) are provided with additional protections under Geneva Convention III, the most pertinent article of which is Article 17:” “No physical or mental torture, nor any other form of coercion, may be inflicted on Prisoners of War to secure from them information of any kind whatever. Prisoners of war who refuse to answer must not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.” 2 As a matter of policy and by law, UK Armed Forces will as a minimum treat all CPERS detained during international or non-international armed conflict or other military deployments in adherence to Common Article 3. Additional protections are provided to entitled civilians by virtue of their protected status under Geneva Convention IV. Prisoners of War (PWs) are provided with additional protections under Geneva Convention III, the most pertinent article of which is Article 17:” “No physical or mental torture, nor any other form of coercion, may be inflicted on Prisoners of War to secure from them information of any kind whatever. Prisoners of war who refuse to answer must not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.” 3 All approaches described in this Annex are compliant with this standard and are to be conducted in accordance with the prohibition against outrage upon personal dignity, humiliation, and degrading treatment. Despite being fully consistent with Geneva Convention III Art. 17, MoD policy direction is that the Challenging approach is not to be used against those personnel who qualify for PW status; thereby mitigating the risk of a Tactical Questioner or Interrogator inadvertently breaching this Geneva Convention. All other approaches are authorised for use against PWs and are to be conducted in accordance with the prohibition against threats, insults, or unpleasant or disadvantageous treatment of any kind whatsoever. 4 Significantly, not even Geneva Convention III Art. 17 prohibits attempts to extract information of military value; nor does it prevent deception or persuasion, both processes which are regarded as entirely legitimate.” (original emphasis)

[14]The document then sets out four authorised approaches: Neutral, Friendly, Firm and Challenging. The Challenging approach is described as follows: “The Challenging approach comprises two defined aspects, Challenge Direct and Challenge Indirect, which may be used separately or sequentially but not simultaneously. Neither approach is intended nor permitted to threaten, coerce, insult, humiliate or degrade the CPERS, or place the CPERS in fear of violence. Rather, each aims to refocus the CPERS attention on the reality of their situation and futility of intransigence. The Challenging approach is only to be used once one or more of the alternate approved approaches have proven unsuccessful. The Challenge Direct is a series of statements delivered as a verbal “short sharp shock” during the course of questioning to encourage a CPERS to engage with a questioner. The Challenge Indirect is an approach designed to refocus an arrogant CPERS onto the futility of not talking, undermine their belief in their organisation and stimulate them to challenge their own actions. As a matter of policy, the Challenging approach is not to be used against CPERS who qualify for Prisoner of War status, or any CPERS assessed as being vulnerable person. 1) Challenge Direct. The Challenge Direct approach involves a series of statements aimed to last no more than [REDACTED] seconds. The statements will comprise stern comments to the effect that the CPERS is not providing a plausible explanation, or is not acknowledging the importance of engaging with the questioner. A CPERS may have switched off or become so comfortable in a session that they are no longer taking the process seriously; the intention of the statements is to refocus the CPERS on the reality of their situation in order to promote/prompt/encourage engagement. The approach may be delivered loudly, incorporating stern comments, to rapidly bring a CPERS’ attention back on to the process, but only from the front and never into the ear; it should not be so close to the CPERS face that they are put in fear of violence or threats thereof. It can also be slowly delivered in a low pitched tone in order to alert the CPERS they should be listening more attentively. The questioner may appear incredulous, frustrated, exasperated, disappointed or angry; or any combination of these. The approach exploits the inherent human attribute of wishing to please those in authority. The Challenge Direct approach is rhetorical in nature and is best employed in close co-ordination with the friendly or neutral approach where the contradiction will be most effective. The aim is to register with the CPERS the genuine seriousness of the circumstances of their situation and prompt them to defend their behaviours. The Challenging Direct approach is not an information extraction approach; instead it seeks to stimulate the CPERS into engaging with the questioner, to elicit a response from the CPERS and increase the CPERS’ attention to the questioning process. The use of the Challenge Direct approach within Tactical Questioning and Interrogation is subject to the specific constraints detailed in para 6. 2) Challenge Indirect. This approach challenges the aims, politics, actions, impacts, mistakes and conduct of the enemy forces, including the CPERS themselves, to prompt the CPERS to be responsive by refocusing them onto the futility of not talking, undermine their belief in their organisation and challenge their own actions. The approach should only be employed until the desired effect has been achieved, noting that if an interpreter is used this may take longer. The questioner may use real or hypothetical examples, and should consider focusing the criticism on other enemy groups to instigate the debate before challenging the conduct and actions of the CPERS’ own group and finally the CPERS themselves. The questioner may exhibit disbelief in what they are being told and seek to exploit weaknesses in a CPERS’ narrative and position. They may adopt a scornful tone. Sarcasm as well as cynicism may be employed. The aim of this approach is to exploit an individual’s desire to defend his ego or perceptions, particularly where the individual has held a position of authority, thereby encouraging a dialogue or debate which can be steered towards extracting intelligence. Concurrently, it seeks to persuade the CPERS to question their own allegiance to their organisation.” (original emphasis)

[15]The use of Challenge Direct is subject to additional constraints. “Additional Constraints on the use of the Challenge Direct Approach. The use of the Challenge Direct approach is to be pre-approved and observed by the local commander. Within the context of Tactical Questioning operations this will normally be the commander of the detaining patrol or sub unit; and for Interrogation operations, normally the Interrogator Controller. The approach may only be used a maximum of [REDACTED] any one session during both Tactical Questioning and Interrogation. It is to be used no more than [REDACTED] times against any one CPERS during Tactical Questioning. When used within Interrogation operations, the Challenge Direct approach would not normally be used more than [REDACTED] times against any one CPERS. In exceptional cases in Interrogation operations, which may run over many days, the Challenge Direct approach may be used more than [REDACTED] times against any one CPERS. Where this is the case, the Interrogator Controller must reapprove the use of the approach, having carefully considered the nature of the CPERS and the utility of the repeated use of the approach.” (original emphasis)

[16]In addition the policy provides that personnel conducting interrogation are not physically to touch captured persons during questioning unless this is undertaken in self-defence, for the essential well-being of the captured person or as empathetic or reciprocated touching. [882]

[17]During the hearing before the Divisional Court Mr. Owen accepted that he could not establish that there was any unlawfulness in the challenge indirect approach. Furthermore, although the challenging approach is now authorised for use in tactical questioning we are not concerned with that aspect in this appeal, but only with its use in interrogation. The Geneva Conventions.

[18]The argument before us has proceeded in large part by reference to the Geneva Conventions of 1949, in particular the Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (“Geneva III”) and the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (“Geneva IV”). In addition reference has been made to Article 4, Additional Protocol II of 8 June 1977 to the Geneva Conventions of 12 August 1949 (“AP II”).

[19]It was common ground between the parties that with one exception neither Geneva III nor Geneva IV has any direct application to the current conflict in Afghanistan because that is not a conflict of an international character. However, an important exception is that in each case Article 3, which is common to all of the Geneva Conventions of 1949, (Common Article 3) does apply in the case of armed conflict which is not of an international character. It provides:

“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: 1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kind, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular, humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilized peoples. 2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

In the same way it was accepted that Article 4, AP II also applies in a conflict which is not of an international character. It provides in relevant part:

“Article 4 – Fundamental guarantees a) violence to life and person, in particular murder of all kind, mutilation, cruel treatment and torture; b) taking of hostages; c) outrages upon personal dignity, in particular, humiliating and degrading treatment; d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilized peoples. 1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors. 2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever: a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment: b) collective punishments; c) taking of hostages; d) acts of terrorism; e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) slavery and the slave trade in all their forms; g) pillage; h) threats to commit any of the foregoing acts.”

[20]Nevertheless, for reasons which will become apparent, extensive reference was also made to other provisions of Geneva III and Geneva IV including the following: Geneva III “13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. Measures of reprisal against prisoners of war are prohibited. 14. Prisoners of war are entitled in all circumstances to respect for their persons and their honour. ….. 17. Every prisoner of war, when questioned on the subjects, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. . . . . No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.” Geneva IV “27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. ….. 31. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties. ” The Divisional Court.

[21]Both members of the Divisional Court were clearly unpersuaded that the claimant has standing to bring this action. However, neither decided the point, Collins J. observing that since he had no doubt that the claim must fail on its merits there was little point in relying on lack of standing as a separate basis for refusing relief to the claimant.

[22]During the course of argument before the Divisional Court, Mr. Owen QC on behalf of the claimant accepted that he could not establish that there was any unlawfulness in the challenge indirect approach. Nevertheless he maintained that the challenge direct was unlawful because it failed to deal with the deficiencies in the harsh policy in that an aggressive and intimidating approach was still permitted by the tactic of shouting at the person being questioned.

[23]Collins J. considered that the question was whether the challenging approach, in the use of shouting over a short lived period subject to the controls set out in the policy, was to be regarded as humane. He drew attention to the fact that the questioning was permissible. He considered that what is humane must be judged in the context of interrogation which would inevitably be to an extent oppressive for the person being interrogated. He had no doubt that, if used in accordance with and applying the controls required by the policy, the use of challenge direct could not be regarded as a breach of the obligation of humane treatment. Furthermore he considered that the MoD had had regard to the concerns expressed by Sir William Gage and that it was clear that real efforts had been made to ensure compliance with the Geneva Conventions and to avoid any risk of non-compliance. In his judgement, those efforts had succeeded. (paras 31, 32, 34)

[24]On the alternative ground of challenge that, even if the policy on its face appeared to be lawful, there was a real risk that it would be exercised in a way that was not lawful having regard to the circumstances in which it was to be used, Collins J. considered that the necessary requirements to avoid any unlawfulness were fully detailed in the policy and so there was compliance with what was needed to avoid a real risk of unlawfulness.

[25]In a concurring judgment, Hallett L.J. considered that the new policy was very different from the old. She referred to the strict controls on its use. In her view the use of the technique did not amount to coercion or oppression and was not threatening or abusive. (paras 46, 48) The application for permission to appeal.

[26]On the application for permission to appeal to the Court of Appeal this court (Moore-Bick, Lloyd Jones LJJ) expressed real concerns as to whether the applicant has standing to bring these proceedings. However, it considered that the proceedings gave rise to issues which deserved to be considered by the Court of Appeal. Having regard to the course which the proceedings had followed, the court did not consider it appropriate to deal at the permission hearing with the issue of standing. Accordingly it granted permission to appeal and directed that the question of standing be determined by the full court at the same time as the hearing of the substantive appeal. The nature of the challenge.

[27]The appellant now appeals on the following grounds:(1) The court erred in holding that the revised policy in relation to the coercive questioning of detained persons who do not enjoy prisoner of war status is compatible with the United Kingdom’s obligations under international law.

(2) Further or alternatively, the court erred in holding that the policy and its application in Afghanistan (based on the available evidence) does not give rise to an unacceptable risk of breaching international law or authorizing a common law assault.

[28]It is important to note that the legal challenge brought in these proceedings is to the policy and not to the manner of its implementation. Here, the appellant’s primary case is that, even if operated in accordance with its terms, the policy would be unlawful. Accordingly, the review can proceed by an examination of the policy and on the assumption that it is operated in accordance with its terms. Normally, the legal standard by which the policy is to be judged would be derived from principles of domestic administrative law. The present case is somewhat unusual in that the statement of policy itself imports from international humanitarian law, and in particular the Geneva Conventions, the legal standards by which the policy is to be judged.

[29]In the alternative, the Appellant argues that even if the policy on its face is lawful, there remains an unacceptable risk that it will be implemented in a way that is not lawful having regard to the circumstances in which it may be used. It is in this context that the Divisional Court and this court have viewed video recordings of interrogations. We have not been concerned to ascertain whether there have been breaches of the policy in its implementation. Rather, the significance of the recordings has been in relation to the issue whether some defect or omission in the policy gives rise to an unacceptable risk that it will be implemented in a manner which is unlawful. The Appellant’s argument in relation to the risk arising from the policy forms Ground 2 of his appeal.

[30]These characteristics of the claim are reflected in the relief sought which includes orders that the respondent amend its policies, desist from teaching the challenge direct approach and promulgate new policies.

[31]The policy is potentially of general application. However, challenge direct is subject to a number of constraints including requirements for prior authorisation at various levels. As Afghanistan is the only theatre in which the policy has been authorised for use, submissions before us inevitably concentrated on its application there. However, as the appellant points out, if the United Kingdom became involved in armed conflict in another theatre it would, as matters stand, be open to the Secretary of State to authorise the use of challenge direct there. Ground 1: The court erred in holding that the revised policy in relation to the coercive questioning of detained persons who do not enjoy prisoner of war status is compatible with the United Kingdom’s obligations under international law. The applicable standard.

[32]By the MoD Strategic Detention Policy of March 2010, the Secretary of State expressly requires the Ministry of Defence and the Armed Forces to ensure that all detained persons held by UK forces are treated humanely at all times, in accordance with applicable host state law, international law and UK law. It further provides that they are required, as a minimum, without prejudice to the legal status of a detained person, to apply the standards articulated in Common Article 3. Where other standards are applicable they too must be applied. Similarly, as we have seen, paragraph 23 of the Policy of 12 May 2012 and paragraph 2 of Annex B require that UK armed forces will treat all captured persons humanely at all times and will, as a minimum, apply the standards of Common Article 3. The policy which is challenged in these proceedings therefore expressly requires compliance with Common Article 3. In these circumstances, while noting that Common Article 3 comprises rules which reflect “elementary considerations of humanity” (Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, ICJ Reports 1986, p. 114), it is not necessary to consider whether such obligations would arise independently as a matter of law or whether they are to be regarded as forming part of domestic law within the United Kingdom. The policy, by its own terms, is required to comply with Common Article 3.

[33]Annex B to the policy of 16 May 2012 also refers at some length to Article 17 of Geneva III. Having set out the fourth paragraph of Article 17, which provides, inter alia, that prisoners of war who refuse to answer must not be “threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind”, it asserts as follows: “All approaches described in this Annex [i.e. including the challenging approach] are compliant with this standard and are to be conducted in accordance with the prohibition against outrage upon personal dignity, humiliation, and degrading treatment.” (Annex B, paragraph 2) It may be that Annex B falls short of requiring UK armed forces to comply with Article 17 when employing the authorised approaches. However, this is immaterial for present purposes because the policy maintains that it is compliant with Article 17. Were that not the case, the policy would have been adopted under an error of law. Accordingly, in the review of the policy it is necessary to consider whether it does comply with the standard set in Article 17. This, once again, was not controversial at the hearing before us.

[34]It should be noted that Annex B provides that “despite being fully consistent with Art. 17”, MoD policy direction is that the challenging approach is not to be used against those personnel who qualify for prisoner of war status. This exclusion has given rise to a specific argument on behalf of the appellant that the policy is, as a result, irrational. This argument is considered subsequently.

[35]Within his first ground of appeal, the appellant criticises the Divisional Court for proceeding on the erroneous basis that Geneva IV would apply to a suspected Taliban insurgent captured by UK forces in Afghanistan. It is true that Collins J. at paras. 21 and 23, observed that a captured person in Afghanistan may well be a protected person within Geneva IV. In fact, as we have seen, the provisions of Geneva IV, other than Common Article 3, have no direct application to the situation in Afghanistan because it is not an international conflict. However, the appellant has totally failed to persuade me that this error on the part of the Divisional Court leads anywhere. To my mind, nothing in the present case turns on whether the situation in Afghanistan is characterised as an international or non-international armed conflict. The main issue before the Divisional Court and on this appeal has been whether challenge direct contravenes the duty of humane treatment, the applicability of which has not been disputed. Moreover, in his submissions to us Mr. Owen has urged us to accept that the directly inapplicable provisions of Geneva III and Geneva IV, including Articles 27 and 31 of Geneva IV to which Collins J. referred, should be considered because they provide content for the obligation under Common Article 3.

[36]The central issue under this ground, it seems to me, is as to the content of the duty of humane treatment under Common Article 3. Pictet in his commentaries on the Geneva Conventions describes it as having the merit of being “simple and clear” and adds that “it at least ensures the application of the rules of humanity which are recognized as essential by civilized nations”. (Pictet, Commentary on Geneva Convention I, p. 48). However, elsewhere in his Commentaries he observes that the definition of “humane treatment” is not an easy one (Pictet, Commentary on Geneva Convention III, p. 39) and it is not a very precise one (Pictet, Commentary on Geneva Convention IV, p. 38). On the other hand, he says, there is less difficulty in enumerating things which are incompatible with humane treatment and that is the method employed by the Conventions in Common Article 3. (Pictet, Commentary on Geneva Convention III p. 39). In his commentary on Geneva IV he states, with regard to Common Article 3 and Article 27:

“The expression “to treat humanely” is taken from the Hague Regulations and from the two 1929 Geneva Conventions. The word “treatment” must be understood here in its most general sense as applying to all aspects of man’s life. It seems useless and even dangerous to attempt to make a list of all the factors which make treatment “humane”

. The purpose of this Convention is simply to define the correct way to behave towards a human being, who himself wishes to receive humane treatment and who may, therefore, also give it to his fellow human beings. What constitutes humane treatment follows logically from the principles explained in the last paragraph, and is further confirmed by the list of what is incompatible with it. In this connection the paragraph under discussion mentions as an example, using the same wording as the Third Geneva Convention, any act of violence or intimidation inspired not by military requirements or a legitimate desire for security, but by a systematic scorn for human values (insults, exposing people to public curiosity etc.). … The requirement of humane treatment and the prohibition of certain acts incompatible with it are general and absolute in character, like the obligation enjoining respect for essential rights and fundamental liberties. They are valid “in all circumstances” and “at all times”, and apply, for example, to cases where a protected person is the legitimate object of strict measures, since the dictates of humanity and measures of security or repression, even when they are severe, are not necessarily incompatible. The obligation to give humane treatment and to respect fundamental rights remain fully valid in relation to person in prison or interned, whether in territory of a Party to the conflict or in occupied territory. It is in such situation, when human values appear to be in greatest danger, that the provision assumes its full significance.” (Pictet, Commentary on Geneva Convention IV, p. 204) Pictet is here addressing the duty of humane treatment in both Common Article 3 and in Article 27 of Geneva IV. It is clear from his approach that he considers that humane treatment bears the same meaning in each provision. The “principles explained in the last paragraph to which he refers” are those set out in the first paragraph of Article 27, namely respect for the person, respect for honour, respect for family rights, respect for religious convictions and practices and respect for manners and customs.

[37]The difficulty – and, indeed, the undesirability – of seeking to define at length the content of the duty of humane treatment under Common Article 3 is a frequent refrain in Pictet’s Commentaries. However, in his Commentary on Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, the following passage does give some idea of the content of the obligation: “What Article 3 guarantees is humane treatment. Lengthy definition of expressions such as “humane treatment” or “to treat humanely” is unnecessary, as they have entered sufficiently into current parlance to be understood. It would therefore be pointless and even dangerous to try to enumerate things with which a human being must be provided for his normal maintenance as distinct from that of an animal or to lay down in detail the manner in which one must behave towards him in order to show that one is treating him “humanely”, that is to say as a fellow human being and not as a beast or a thing. The details of such treatment may, moreover, vary according to circumstances – particularly the climate – and to what is feasible.” (Pictet, Commentary on Geneva Convention I, p. 53)

[38]Common Article 3(1) imposes a duty to treat persons humanely before going on to prohibit four specific categories of conduct. It is clear from the structure of the paragraph that the duty of humane treatment is intended to be a general positive obligation and is not limited to an obligation to abstain from the prohibited categories of conduct which follow. The specific prohibitions are expressed to be “[t]o this end” i.e. they are to further the general positive duty of humane treatment. The above passage from Pictet’s Commentaries confirms this reading. (See also Pictet’s observations on Article 13 of Geneva III, (Commentary on Geneva Convention III, p. 141.))

[39]Although Pictet observes in his Commentary on Geneva IV that what constitutes humane treatment is further confirmed by the list of what is incompatible with it (Pictet, Commentary on Geneva IV, p. 204) I do not consider that it is necessary for a breach of the duty of humane treatment to be of the severity of the four express prohibitions. They seem to me to be particularly grave breaches of the principle. In this regard I note that the International Tribunal for the Former Yugoslavia in The Prosecutor v. Zlatko Aleksovski, Case IT-95-14/1-T, 25 June 1999 observed with regard to Common Article 3:

“The Commentary to Geneva Convention IV explains that the delegations to the Diplomatic Conference of 1949 sought to adopt wording that allowed for flexibility, but, at the same time, was sufficiently precise without going into too much detail. For “the more specific and complete a list tries to be, the more restrictive it becomes”

. Hence, while there are four sub-paragraphs which specify the absolutely prohibited forms of inhuman treatment from which there can be no derogation, the general guarantee of humane treatment is not elaborated, except for the guiding principle underlying the Convention, that its object is the humanitarian one of protecting the individual qua human being and, therefore, it must safeguard the entitlements which flow therefrom.” (at para. 49)

[40]The appellant criticises the Divisional Court for having ignored the extent to which there is a positive obligation to treat detainees humanely and having reduced it to a mere negative obligation to refrain from doing its opposite the prohibited conduct. In this regard he draws particular attention to the following passage in the judgment of Collins J.:

“It is in my view now apparent that whether or not treatment in interrogation can be regarded as unlawful will depend on whether it contravenes a prohibition on treatment which would be regarded as inhumane”

(at para. 34) I doubt that the judge was intending to limit the duty of humane treatment in the manner suggested. This passage in his judgment immediately follows his citation of Pictet’s view that the duty of humane treatment and the prohibition of certain acts incompatible with it are general and absolute in character. However, be that as it may, I consider that the language and scheme of Common Article 3(1) clearly demonstrate that it gives rise to both a positive duty to accord humane treatment and a negative duty to abstain from inhumane conduct, certain examples of which are provided. The positive duty is general and not limited to abstaining from prohibited conduct.

[41]Mr. Owen submitted that in interpreting Common Article 3 it is necessary to have regard to other provisions of Geneva III and Geneva IV and, more widely, to other instruments in the field of international humanitarian law and human rights. In this regard he relied on Article 31, Vienna Convention on the Law of Treaties which provides in relevant part:

“Article 31. General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. ... 3. There shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.”

[42]I readily accept that treaties such as the Geneva Conventions must be interpreted in their context and in the light of their object and purpose. The context will include subsequent treaty law, in particular in the field of international humanitarian law, and developments in customary international law. (See, generally, Al-Adsani v. United Kingdom

(2002) 34 EHRR 11

at para. 55.)

[43]So far as the Geneva Conventions are concerned, I consider that it was intended that the duty of humane treatment should bear a uniform meaning throughout the Conventions and that, accordingly, in seeking to determine the content of that duty some assistance may be derived from the other provisions in which it appears. This is certainly the approach of Pictet who, as we have seen, discusses the meaning of the duty of humane treatment in Common Article 3 in conjunction with his consideration of other provisions of Geneva III and IV. However, it is important not to lose sight of the fact that Geneva III and IV establish different legal regimes for different situations. Common Article 3 is intended to afford protection to persons not taking an active part in hostilities who are not entitled to the protection of Geneva III or IV because the armed conflict is not of an international character. It seems to me, therefore, that Mr. Owen goes too far when he submits that Common Article 3 was intended to embody the essential principles of the Conventions which may then be imported into Common Article 3. Nevertheless, while a wholesale importation of standards from inapplicable provisions is not permissible, other provisions of the Conventions may cast some light on the duty of humane treatment.

[44]Both parties before us submitted that in interpreting Common Article 3 it is also permissible to have regard to analogous concepts in other humanitarian or human rights instruments. However, it seems to me that a considerable degree of caution is required here since different conventions may employ different concepts and structures and may address situations which are not analogous. This was apparent from the materials to which we were taken during the hearing. Thus, for example, within the European Convention on Human Rights considerations of respect for human dignity are not confined to Article 3 but are also addressed by Article 8.

[45]In this regard I should refer to a further criticism which the appellant makes of the approach of the Divisional Court. Collins J. (at para. 34) stated that, in deciding whether there was an infringement of the duty of humane treatment under Common Article 3, a useful guide could be obtained from

Article 3 ECHR

“since it is clear that any physical ill-treatment of a detainee is likely to contravene it and other forms of coercion may, if sufficiently serious”. This statement immediately prefaced his conclusion that he had no doubt that if used in accordance with and applying the controls required by the policy, challenge direct could not be regarded as a breach of the duty of humane treatment. To my mind, this approach is unduly restrictive of the duty of humane treatment. As elaborated in the case law

Article 3 ECHR

employs a high threshold test of a minimum level of severity which it would not be appropriate to employ in the case of Common Article 3. (See, generally, the survey of the case law in Grant and Gleaves v. The Ministry of Justice

[2011] EWHC 3379 (QB)

, per Hickinbottom J. at paras. 32 et seq.) Furthermore, as previously mentioned, the structure of the ECHR means that affronts to human dignity are addressed not only by Article 3 but also by Article 8, a division which suggests that the limits set to the scope of application of Article 3 may not be analogous to Common Article 3. Mr. Owen accepts that in the present case the conduct complained of does not reach the level of severity which would be required to demonstrate a violation of

Article 3 ECHR

. However, it does not seem to me to be appropriate to apply such a high threshold in the case of Common Article 3.

[46]In considering the extent to which other provisions of Geneva III and IV may cast light on the duty of humane treatment, a particular issue relates to the effect of Article 17 of Geneva III and, in particular, its prohibition in the questioning of prisoners of war of coercion, threats, insults or “unpleasant or disadvantageous treatment of any kind”. It is not necessary to decide whether these provisions of Article 17 are imported into Common Article 3 as Mr. Owen submits, because, for reasons explained earlier in this judgment, I consider that in any event Article 17 forms a part of the standard applicable in this judicial review. The facts relating to challenge direct must be assessed against both Common Article 3 and Article 17 of Geneva IV.

[47]We have not been referred to any authorities on the extent of permissible questioning under Article 17 of Geneva III. However, I have been assisted by the observations of the commentators which have been drawn to our attention. The starting point is that there is no prohibition on the questioning of a prisoner of war, although a prisoner of war is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. Pictet in his Commentary on Geneva III draws attention to the circumstances in which such questioning is carried out, pointing out that prisoners of war are usually questioned very shortly after capture, sometimes even on the battlefield and amid some confusion (Pictet, Commentary on Geneva III at p. 159)

[48]Fleck states: “All types of coercion on the part of those questioning in order to secure information from prisoners of war are prohibited. Article 17 expressly forbids the use of physical and mental torture as coercive measures. Physical coercion falling short of torture is also generally prohibited. … Article 17 does not mention any other kinds of influence apart from coercing prisoners of war in order to obtain information. The promise of privileges or the use of psychological tricks would not be in breach of Article 17 GCIII. This interpretation reflects the reality of armed conflicts, in which parties continue to try to obtain information from prisoners of war. … However, psychological interrogation techniques which result in inhumane treatment are prohibited.” (The Handbook of International Humanitarian Law, (2013) 3rd Ed., pp. 391-2.)

[49]Particularly relevant to the issues before the court are the observations of Glod and Smith in an article published in 1968: “While prisoners of war are entitled to certain rights as a matter of law and are entitled to be treated humanely as a matter of morals, it must be remembered that prisoners are captured soldiers and mature men accustomed to strict discipline and the rigors of military life. In such a life minor physical discomforts are not only permissible but are to be expected. The problem is at what point physical discomforts cease to be minor and become illegal coercion. This presents a question of fact which must be determined separately in each case. It is clear that some minor physical discomforts applied to all prisoners will not necessarily violate Article 17. Some of the permissible physical discomforts might include the practice of making all prisoners stand during their interrogation or sit in an uncomfortable chair. Likewise, the use of bleak surroundings, such as a dimly lit room or an unusually bright one, could legitimately be employed as psychological weapons in the battle for military intelligence. These variables would comprise only a deprivation of ordinary luxuries of civilian life and thus would not be acts of overt coercion. Also, harsh tones of voice, a system of reward for cooperation, etc. are all devices which amount to nothing more than psychological cleverness in the age old art of interrogation. It must be noted, however, that “minor physical discomfort” encompasses only a lack of luxury, not deprivation of basic human needs, and certainly not any form of physical violence or threats.” (Glod and Smith, Interrogation under the 1949 Prisoners of War Convention, Military Law Review (1968) 145 at p. 153.).

[50]In this regard it is also appropriate to consider the evidence given by Professor Brice Dickson and Professor Sir Adam Roberts to Sir William Gage’s Inquiry expressing their reservations on the 2010 version of the harsh approach. (The Report of the Baha Mousa Inquiry, paras. 16.187 et seq.) Professor Dickson commented that international human rights law does not prohibit harsh approaches as such when detainees are being questioned. However, he added the caveats that such treatment must not produce feelings of fear, anguish or inferiority, nor spill over into sexism, racism or religious slurs, and that the protections granted by the Geneva Conventions may be higher than international human rights law in this area. He considered the reference to “harsh approaches” to be a bit worrying. Even though the term is then qualified, it must not amount to intimidation, coercion, unpleasant or disadvantageous treatment or inhuman or degrading treatment. He stated that he would be interested to know what kind of approach would not fall into any of those categories but still be harsh. He also considered that the reference to the drill sergeant’s “berating, cajoling and deriding” suggested that harsh approaches can take the form of shouts, roars and belittling remarks, which would surely be at the very least unpleasant and degrading forms of behaviour. Similarly the policy prohibited insults but allowed sarcasm, scolding and derision, which he considered would surely be unpleasant although probably not degrading. He also drew attention to the potential for inconsistency within the 2010 policy between telling interrogators that they must not insult captured persons but that the approach permitted them to ridicule their performance. He accepted that drawing a precise line between permissible and impermissible interrogation practices was obviously very difficult. However, he thought that the policy was somewhat internally inconsistent and that further clarification would be desirable. (at paras. 16.188-9)

[51]Professor Sir Adam Roberts raised significant concerns about the compatibility of the harsh approach with the Geneva Conventions. A category had been created, described as harsh, without clarity as to what it involved. “This may of course lead some to conclude that “harsh” means “harsh” and anything goes.” He considered the category of “firm” admirable and had no problem at all with that. However, he considered that creating a notional category of “harsh” and then failing to provide much content to it was asking for trouble. (at para. 16.190)

[52]Reference has been made above to the conclusions of the Inquiry in relation to the harsh approach. At para. 16.186 Sir William Gage observed that the harsh policy appeared to rely on an assumption that being berated, cajoled or derided by being shouted at close range in the manner of a drill sergeant, but for a relatively short period of time, is neither “unpleasant” nor “disadvantageous treatment”. In his view, if justified at all, it was a very fine line.

The conduct permitted by the policy

[53]Against this background I turn to consider precisely what conduct is permitted by the policy which is challenged in the present proceedings. Challenge direct is a series of statements delivered as a verbal, short, sharp shock during questioning to encourage the captured person to engage with the questioner. It permits the questioner to make a series of statements which must last no longer than a short period of time measured in seconds. The statements will comprise stern comments to the effect that the captured person is not providing a plausible explanation or acknowledging the importance of engaging with the questioner. The approach may be delivered loudly, incorporating stern comments. It must be delivered only from the front and never into the ear. It should not be so close to the face as to place the captured person in fear of violence or threats thereof. It can also be delivered slowly in a low pitched tone in order to alert the captured person to listen more attentively. The questioner may appear incredulous, frustrated, exasperated, disappointed or angry or any combination of these.

[54]The intention of the approach is said to be cause the captured person to take the process seriously, to focus him on the reality of the situation and to promote engagement and not to extract information. However, as Mr. Owen observes, this is a fine distinction given that the ultimate purpose of the interrogation is to obtain information.

[55]I would draw attention to the following further features:(1) The approach is not permitted to threaten, coerce, insult, humiliate or degrade the captured person or put him in fear of violence.

(2) Physical contact with the captured person is prohibited.

(3) It is to be used only as a last resort, once one or more of the other approved approaches has proved unsuccessful.

(4) It is not to be used against a prisoner of war or a vulnerable person.

(5) Its use in individual cases requires prior approval from the Interrogator Controller.

(6) The frequency of its application to an individual is limited.

(7) Its use is subject to monitoring, recording and review.

[56]We have been told that limited use is made of the policy. The evidence of Captain Paul Abraham RN CBE is that between 1 August 2011, when the policy was introduced for use during interrogation, and 28 February 2014 challenge direct was authorised for use on 60 occasions and used on 15 occasions. However, this does not seem to me to be relevant to a consideration of the legality of the policy. If the policy is unlawful that remains the case, however frequently or infrequently it is used.

[57]I consider that there are significant differences between the harsh policy and challenge direct. I have set out earlier in this judgment Collins J.’s description of the harsh approach.I agree with Collins J. that it is no surprise that Sir William Gage concluded that the harsh technique was unacceptable. By contrast, challenge direct is subject to the requirement that it must not threaten, coerce, insult, humiliate or degrade the captured person or place him in fear of violence. Its use is strictly controlled and limited in the ways described above. I am satisfied that the new policy is very different from the old.

[58]Furthermore, the Secretary of State has acted on the recommendations of the Baha Mousa Inquiry in the following further respects.(1) Clear guidance is provided in training as to the proper limits of challenge direct. In this regard the court has considered the training materials and viewed the training video.

(2) The analogy with a drill sergeant has been abandoned.

(3) Whereas the title “harsh approach” was open to misinterpretation, the title of the new policy cannot suggest that unlawful, threatening or intimidatory conduct is permitted.

(4) Specific Ministerial approval is required before challenge direct may be approved for use in any operational theatre.

[59]I note that whereas the harsh policy required that the questioner’s speech be coherent and translated, this is not an express requirement of challenge direct. Indeed the training materials which we have been shown state in terms that what is said in challenge direct is unlikely to be translated. (This should be contrasted with challenge indirect where the training materials state that what is said will require translation.) This is a matter of some significance because it demonstrates that the whole point of challenge direct is the manner of delivery not the content. Moreover, unless the captured person speaks English, there is no possibility of his being coerced, intimidated, threatened, insulted or humiliated by the content of what is said as opposed to the manner of its delivery. It seems to me, therefore that the Divisional Court was correct in concluding that the challenge is essentially to a policy authorising shouting over a short period of time measured in seconds and subject to the detailed controls set out in the policy.

[60]To my mind, the short, sharp shock authorised by the policy does not constitute inhumane treatment within Common Article 3, nor does it constitute coercion, threatening or insulting conduct or unpleasant or disadvantageous behaviour within Article 17 of Geneva III. I am satisfied that the policy is intended to be delivered in a manner which is neither coercive nor threatening and that that is achievable. Moreover, that is confirmed by the training video. So far as inhumane treatment and unpleasant or disadvantageous behaviour are concerned, there must be a minimum threshold of seriousness before these standards can be infringed and I am unable to accept that the conduct contemplated by the policy crosses that threshold. Questioning of captured persons is permitted. That of itself is likely to be an “unpleasant” experience in one sense as there can be no objection to questioning which is determined, uncompromising and relentless.As Glod and Smith indicate, the use of harsh tones of voice would be regarded as unexceptionable in the interrogation of prisoners of war, the situation which Article 17 directly addresses. “Unpleasant behaviour” within Article 17 must therefore contemplate a situation of greater severity than that. I do not consider that a policy which permits shouting for a very short period, subject to these controls and subject to the overriding requirement that it must not threaten, coerce, insult, humiliate or degrade the captured person or put him in fear of violence, infringes any of the applicable standards.

Prohibition on the application of the policy to prisoners of war

[61]Finally, in this regard, it is necessary to address a further submission on behalf of the appellant relating to the prohibition on the application of challenge direct to prisoners of war. The policy states: “Despite being fully consistent with Geneva Convention III Art 17, MoD policy direction is that the challenging approach is not to be used against those personnel who qualify for [prisoner of war] status; thereby mitigating the risk of a tactical questioner or interrogator inadvertently breaching this Geneva Convention.” (Annex B para. 3) Mr. Owen submits that the decision not to apply challenge direct in the case of prisoners of war is irrational since there is no material difference between the protection to be applied to them and to other captured persons. Accordingly, he submits, the application of the policy to captured persons who are not prisoners of war would violate the duty of humane treatment.

[62]In addressing this submission in the Divisional Court Collins J. (at paragraph 25)expressed the view, without deciding the point, that it may be that Article 17 of Geneva III does give a greater protection in relation to questioning than that applicable to civilians under Article 31. On behalf of the appellant it is submitted that the Divisional Court erred in determining that in the context of interrogation the minimum standard of treatment required for prisoners of war under Article 17 of Geneva III may be permissibly higher than the standard of treatment required for civilians detained either in an international armed conflict, where they would enjoy the status of protected persons, or in a non-international armed conflict where they would be entitled to the protection of Common Article 3, customary international law and applicable human rights law.

[63]The explanation provided by Captain Robert Fancy RN OBE is that it is the view of the Secretary of State that all approaches described in the policy are compliant with the standard set in Geneva III but, notwithstanding this, the policy direction that the challenging approach is not to be used for prisoners of war reflects an attitude of caution. By withdrawing prisoners of war from the scope of challenge direct the policy prevents even the theoretical possibility of breach of Article 17. [820] In argument Mr. Eadie submitted that this was the only sensible inference.This limitation of the application of challenge direct does not, to my mind, necessarily involve any acceptance by the Secretary of State that challenge direct could not be lawfully applied to prisoners of war. Indeed, the contrary is asserted in the policy.

[64]Even if, which is not demonstrated, the Secretary of State is to be taken as having concluded that prisoners of war are entitled to the protection of standards in Article 17 to which non-prisoners of war are not entitled, the argument does not assist the appellant. As we have seen, although the policy did not require compliance with Article 17 its statement that it did comply with Article 17 ensures that on this judicial review the appellant is entitled to invoke the standards contained in Article 17. Moreover, for the reasons set out above, I consider that there has been no violation of those standards.In these circumstances it is not necessary to address the comparative levels of protection afforded by Article 17 of Geneva III and Article 31 of Geneva IV, a matter which was not fully argued before us in any event.

[65]For these reasons I consider that the challenge to the policy fails. Ground 2: Further or alternatively, the court erred in holding that the policy and its application in Afghanistan (based on the available evidence) does not give rise to an unacceptable risk of breaching international law or authorizing a common law assault.

[66]On behalf of the appellant it is submitted that even if the policy on its face appears to be lawful, there is an unacceptable risk that it would be exercised in a way which was not lawful having regard to the circumstances in which it is to be used. The challenge under this ground, like that under Ground 1, is a challenge to the policy. It is not a challenge alleging non-compliance with the policy or the unlawfulness of the particular use of challenge direct in individual cases.

[67]Mr. Owen places at the forefront of his submissions the decision of this court in R (Refugee Legal Centre) v. Secretary of State for the Home Department

[2005] 1 WLR 2219

. That case concerned a challenge to the decision to establish a fast track pilot scheme for the adjudication of asylum applications at Harmondsworth Removal Centre on the ground that it was inherently unfair and unlawful because it compressed the decision making process into three days. Sedley L.J. delivering the judgment of the court considered that there would be something judicially wrong with a system which places asylum seekers at the point of entry at unacceptable risk of being processed unfairly. He continued:

“We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of the two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects.”

(at paragraph 7)

[68]This approach was applied by Silber J. in R (Medical Justice) v. Secretary of State for the Home Department

[2010] EWHC 1925

Admin. That case was concerned with a challenge to a policy whereby certain classes of individuals who had made unsuccessful applications to enter the United Kingdom were given little or no notice of removal directions, thereby limiting or removing the opportunity for them to apply for judicial review of the removal directions. He concluded that there was a very high risk if not an inevitability that the right of access to justice was being and would be infringed and that the policy document was unlawful. The Secretary of State appealed on the ground that Silber J. should have applied the approach in Refugee Legal Centre and asked himself whether there was in the policy “a proven risk of injustice which goes beyond aberrant … decisions and inheres in the decision itself”. It was the view of the Court of Appeal in that case that the judge had simply applied the approach in Refugee Legal Centre (

[2011] EWCA Civ 1710

per Sullivan L.J. at paragraph 26, with whom the other members of the court agreed). Similarly, in R (Hassan Tabbakh) v. The Staffordshire and West Midlands Probation Trust

[2014] EWCA Civ 827

, Richards L.J., with whom the other members of the court agreed, considered (at paragraphs 42, 48) that neither the judgment of Silber J., nor its endorsement by the Court of Appeal, altered the approach laid down in Refugee Legal Centre.

[69]Tabbakh, like Refugee Legal Centre and Medical Justice, was a case on procedural fairness. There Richards L.J. observed that the decision in the Refugee Legal Centre case concentrates on whether the system established by the relevant policy is inherently unfair. “It does not reject the test of unacceptable risk of unfairness but effectively equates an unacceptable risk of unfairness with a risk of unfairness inherent in the system itself” (at paragraph 48). However, I have difficulty in seeing how this line of authority, which is essentially concerned with procedural fairness, can assist the appellant in the present case where the challenge is to the substance of the policy.

[70]Another authority relied on by Mr. Owen in this regard is the decision of the House of Lords in R (Munjaz) v. Mersey Care NHS Trust

[2005] UKHL 58

[2006] 2 AC 148

. In that case there was a challenge to a hospital’s policy in respect of the seclusion of psychiatric patients and one of the issues was whether their treatment infringed

Article 3 ECHR

. Lord Bingham of Cornhill (at paragraph 29) stated that the trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by Article 3. Lord Hope of Craighead (at paragraph 80) said that he would approach the issue by asking whether the policy gave rise to a significant risk of ill treatment of the kind that fell within Article 3. They both concluded that there was no breach of Article 3, Lord Hope observing that “the evidence falls well short of demonstrating that the policy, when read as a whole and if proper weight is given to all its additional safeguards, gives rise to a serious risk of ill-treatment of the required level of severity” (at paragraph 81).

[71]Munjaz itself does not assist the appellant. Mr. Owen has expressly accepted that, should the risk addressed in this ground of appeal materialise, the result would not be of such a level of severity as to engage Article 3. Moreover, in Tabbakh Richards L.J. rejected a submission that the test of significant risk in Munjaz was an articulation of the same principle as in the Refugee Legal Centre case. I respectfully agree. These passages in Munjaz were concerned with the specific issue of the risk of exposure to treatment contrary to

Article 3 ECHR

. They lend no support to an argument which seeks to broaden the scope of the principle in Refugee Legal Centre. The appellant’s reliance on R (C A Minor) v. Secretary of State for Justice

[2008] EWCA Civ 882

encounters the same difficulty.

[72]In any event, I have come to the clear conclusion that there is nothing inherent in the policy permitting challenge direct which gives rise to an unacceptable risk of unlawful conduct.

[73]The Divisional Court in this case was shown video recordings of the interrogation of 5 captured persons in Afghanistan which employed challenge direct. At the date of that hearing, those were the only recordings of interrogations employing challenge direct which were available. At the start of the hearing before us, we watched those video recordings plus recordings of eight further interrogations employing challenge direct, those further recordings having been retrieved and disclosed by the Secretary of State since the hearing in the Divisional Court. As a result, this court has viewed the video recordings of 13 of the 17 interrogations in which challenge direct has been employed.

[74]The purpose for which these recordings were sought by the appellant and placed in evidence is stated with clarity by his solicitors in their letter of 2 August 2012 to the Treasury Solicitor seeking disclosure of a selection of video recordings of the challenge direct approach being applied in Afghanistan. “Although the court would not be invited to rule specifically upon the lawfulness of any particular use of the challenging approach that is put before the court, the court will be concerned to consider how the policy may be implemented in practice and whether the policy can be implemented lawfully (or alternatively without unreasonable risk of unlawfulness).” [234]

[75]The recordings are extensive and in each case challenge direct forms only a very small part of the interrogation. I draw attention to the following matters evidenced by the recordings of the interrogations, considered in each case in their entirety and not limited to the use of challenge direct.(1) There are many instances of abusive and insulting behaviour, accompanied by foul language, on the part of the interrogator. This abuse is generally directed at the captured person. In some instances it concerns his attitude towards his family. In one instance he is insulted in terms relating to his religion. In one instance a racist insult is used. It is difficult to assess the impact of these instances on the captured person. However, they involve a considerable loss of dignity on the part of the interrogators.

(2) In a number of instances captured persons are told that unless they co-operate with the interrogator they may be detained indefinitely or handed over to the Afghan authorities. They are also told that they will be liable to prosecution by the Afghan authorities and long terms of imprisonment. As Mr. Eadie pointed out in his submissions, the question whether these statements may properly be characterised as threats may well depend, in part, on legal issues such as the powers of detention of ISAF and the lawfulness of their delivering captured persons into the custody of the Afghan authorities. None of these matters has been argued before us. However, I note that in Serdar Mohammed v. Ministry of Defence

[2014] EWHC 1369 (QB)

Leggatt J. held that detention of a captured person by UK forces beyond the maximum of 96 hours permitted by ISAF (International Security Assistance Force) policy was unlawful under Afghan law and international law. An appeal to this court is pending.

(3) There were instances of physical intimidation. It is clear that, at the least, many of these matters would constitute breaches of the general policy of the MoD in relation to the treatment of captured persons.

[76]The question for consideration here is what, if anything, these recordings tell us about the risks inherent in the challenge direct policy. Although the recordings we viewed were extensive, the use of challenge direct was, with one notable exception, of very limited duration and complied with the requirements of the policy in that regard. For the most part the breaches of the general policy of the MoD in relation to the treatment of captured persons, identified above, were distributed throughout the recordings and were not linked to the use of challenge direct. Those specific individual occasions on which challenge direct was applied in a manner which I consider constituted a breach of the challenge direct policy may be summarised as follows:(1) The interrogator held the hand of the captured person during the use of challenge direct. This was a breach of the prohibition on physical contact. However, this was not limited to the use of contact direct and continued for over 30 minutes throughout the session.

(2) The interrogator slammed the desk with his hand.

(3) The interrogator slammed the wall with his hand.

(4) The use of challenge direct very substantially exceeded the maximum duration permitted. It has been suggested on behalf of the Secretary of State that this is an instance of the firm approach as opposed to challenge direct. However, even when allowance is made for differences in subjective assessment of the degree of severity of the approach, I am clear that this was a use of challenge direct and that it lasted too long.

(5) The captured person was threatened that he would be handed over to “someone else”.

(6) The most striking example of a breach of the policy is this occasion when the interrogator suddenly moved forward from a crouching position so that his face was right in front of the captured person’s. This was physically intimidating.

(7) The use of challenge direct was accompanied by vulgar abuse.

(8) Insulting words were used throughout the interview which continued through the challenge direct.

[77]I also note that a report of an interrogation of a further captured person stated that he was very shaken from the challenge direct he received. [ 1168]

[78]Each of these instances (1) – (8), although of varying gravity, is a breach of the challenge direct policy, and is to be deplored. However, there is no challenge in the present proceedings to any particular use of challenge direct. The challenge here is to the policy which permits it. To my mind there is nothing here to indicate that these breaches have flowed from any deficiency in the policy itself; on the contrary such conduct is expressly prohibited. Rather, they are simply to be viewed as breaches of the policy. Indeed, it is a striking feature of the video evidence that the insulting, threatening and intimidatory behaviour referred to in paragraph 75 above was not limited to those periods when challenge direct was being applied and cannot be regarded as flowing from any deficiency in the challenge direct policy.

[79]In this regard Mr. Owen also drew attention to the observations of Sir William Gage’s inquiry on the modified version of the harsh approach, put forward in the letter of 7 March 2011, which are set out at paragraph 12 above. However, the revised version of the harsh policy considered in these passages has now been replaced by the challenge direct approach which, to my mind, lays down with clarity what is permitted and what is not. In this regard, I also attach particular weight to the extremely stringent limitations imposed by the policy on the duration of challenge direct. I agree with Collins J. that the necessary requirements to avoid any unlawfulness are fully detailed in the policy. They are reinforced by the training video. While the risk of a breach of the policy cannot be eliminated, I do not consider that any such breach would result from anything inherent in the policy. Moreover, as explained earlier in this judgment, I am satisfied that the training video demonstrates that the policy can be implemented lawfully and without unacceptable risk of unlawfulness.

[80]The Divisional Court rejected a submission on behalf of the appellant that the policy gave rise to an unacceptable risk of authorising an assault at common law. Hallett L.J. (at para. 48) considered that shouting at someone, with nothing more, is not an assault. It does not amount to coercion or oppression and it is not threatening or abusive. In her view establishing whether or not an assault had been committed would be a fact intensive exercise in each case, depending on the mens rea of the alleged offender, the conduct of which complaint is made and the words used. At the oral hearing before us, Mr. Owen did not pursue this line of argument. I am satisfied that the challenge direct policy itself does not give rise to a risk of assault. Standing.

[81]I have left to the end of this judgment consideration of whether the appellant has a sufficient interest in the subject matter of the claim to bring these proceedings because I consider that, in this case, the issue of standing has to be addressed in the context of the substance of the claim. As Lord Reed observed in AXA General Insurance Ltd. v. HM Lord Advocate

[2012] 1 AC 868

at para. 170, what is to be regarded as a sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus conferring standing, depends upon the context and, in particular, upon what will best serve the purposes of judicial review in that context. This will differ from case to case and will depend on the particular context and the grounds of the application. (See Walton v. The Scottish Ministers

[2012] UKSC 44

per Lord Reed at para. 92.)

[82]I have come to the clear conclusion that the appellant is not an individual directly affected by the matters which are the subject of the claim. First, the appellant was not subjected to the technique of interrogation with which we are concerned. Indeed, it did not exist in December 2004 when he was questioned by UK forces following his arrest. Although the appellant contends that he was subjected to the former harsh technique and argues that there is very little difference between loud harsh and challenge direct, I consider, for reasons set out earlier in this judgment, that there are substantial differences between the two. Secondly, there is no possibility that he will be subjected to this technique. He is resident in Iraq and the United Kingdom no longer has a military presence in that State. It was argued before the Divisional Court that he might be a potential future victim since the United Kingdom continued to carry out military and intelligence co-operation with Iraq. The Divisional Court rejected that argument as unsupportable and it has not been renewed before this court. Moreover, challenge direct is currently authorised for use only in Afghanistan. Thirdly, he is not a “victim” in the present proceedings within section 7(7) Human Rights Act 1998. Fourthly, it was not necessary for the appellant to bring these proceedings as an adjunct to the proceedings in Ali Zaki Mousa (No. 2) v. Secretary of State for Defence

[2013] EWHC 1412 (Admin)

, in which he is one of the 138 claimants, nor to any investigation resulting therefrom.

[83]There are, nevertheless, situations in which it is appropriate for standing to be acknowledged notwithstanding the lack of a personal interest in the claimant. Regard must be had to the constitutional function of the courts in upholding the rule of law. Thus, in certain situations a personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent. (See AXA General Insurance Ltd. per Lord Hope at para. 63; Walton per Lord Reed at paras. 92-5.) An example of this in a context similar to that of the present case is provided by Al Bazzouni v. Prime Minister

[2012] 1 WLR 1389

where a claimant who had been subjected to hooding by UK forces in Iraq claimed judicial review of guidance on the ground that, insofar as it failed to prohibit hooding in all circumstances, it was unlawful. In that case the Divisional Court considered that although the challenge to the guidance may not postulate factual possibilities identical to those which Mr. Al Bazzouni claimed to have been subjected to, he was nevertheless sufficiently representative of those who might have standing to bring the claim. (at para 5).

[84]While I consider that the courts have a particular responsibility to uphold the rule of law as it applies to the conduct of Her Majesty’s armed forces in situations of armed conflict, I am not persuaded that, in the particular circumstances of the present case, the public interest requires that the appellant should have standing to bring these proceedings. In this regard, I would draw attention to the following considerations in particular.

[85]First, the appellant is remote from those who might have a sufficient personal interest to bring this claim. His past experiences related to a policy which I consider significantly different from that under review in the current proceedings. Whereas in Al Bazzouni the claimant who had suffered hooding challenged a policy on the ground that it did not prohibit hooding, in the present case the appellant seeks to challenge an interrogation technique introduced many years after he was interrogated.

[86]Secondly, it is necessary to have regard to the relative gravity of the complaint. On any view, the use of challenge direct would come low in the scale of possible violations of international humanitarian law. In particular, it is accepted on behalf of the appellant that the matters of which he complains would not be of sufficient gravity to engage

Article 3 ECHR

. Very different considerations would apply were the alleged conduct as grave as the violations alleged in Ali Zaki Mousa (No. 2) which include allegations of murder, manslaughter, the wilful infliction of serious bodily injury, sexual indignities and cruel, inhuman and degrading treatment

[87]Thirdly, by contrast, I do not find persuasive the submission for the Secretary of State that the very limited use of the technique on a very few occasions and only in Afghanistan means that the alleged misconduct does not affect the public generally. Were the alleged violations of international humanitarian law more serious – but no more numerous – there would be a strong case for the court to exercise its powers to maintain the rule of law.

[88]Fourthly, I consider that the purposes of judicial review would be better served by an application by a person who has been subjected to challenge direct. That would have the additional advantage of enabling the issues to be considered by reference to an actual set of facts. Contrary to the submissions on behalf of the appellant I do not consider that this is unlikely to occur. Provision is made in the policy itself for a right to communicate with the International Committee of the Red Cross. Furthermore, I note that a number of individuals detained by UK troops in Afghanistan have brought proceedings in the United Kingdom seeking habeas corpus, judicial review and damages for wrongful detention.

[89]Fifthly, I have now had the advantage of considering standing in the context of the merits of the case following full argument. I have come to the clear conclusion that the policy which the appellant seeks to challenge does not involve any violation of the duty of humane treatment or any other relevant standard under the Geneva Conventions.

[90]For these reasons, I consider that the claimant lacks standing to bring these proceedings.

[91]Finally, in this regard, I should record my surprise that it was thought appropriate to allow the substitution of the present claimant for the original claimant, apparently in order to protect from costs orders an award of damages to the original claimant. However, in view of the fact that this court does not have available all the material relating to that substitution, I make no further comment on the matter.

[92]Notwithstanding the fact that I would dismiss the appeal on the merits, I remain of the view I expressed on the application for permission to appeal, that, given the course which these proceedings have followed and the fact that the Divisional Court had delivered a judgment on the merits, it was appropriate for this court to hear the appeal and to rule on the merits. However, I also consider that the appellant lacks standing and I would dismiss this appeal on that additional ground.

LORD JUSTICE RYDER :

[93]I have had the benefit of seeing both judgments in advance and I agree.

LORD JUSTICE TOMLINSON :

[94]I also agree. I have concerns about the substitution to which Lloyd Jones LJ refers at paragraph 91 and about the use of public funds in these proceedings, but I will defer further comment until we have heard further submissions in respect thereof.

Hussein, R (on the application of) v Secretary of State for Defence [2014] EWCA Civ 1087

Challenge Direct

The conduct permitted by the policy

Prohibition on the application of the policy to prisoners of war

LORD JUSTICE RYDER :

LORD JUSTICE TOMLINSON :

Cited in 3 later judgments