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Government loses appeal over Afghanistan detention

The High Court ruled that the detention of an Afghan man by UK forces was unlawful
The High Court ruled that the detention of an Afghan man by UK forces was unlawful

The Government has lost its appeal against a High Court ruling that the detention policy adopted by UK forces in Afghanistan was unlawful.

Defence Secretary Michael Fallon had asked three judges to declare the finding ''fundamentally flawed'' with no legal basis.

It was made in May last year in the case of Afghan farmer Serdar Mohammed, who was held in 2010 on suspicion of being a senior Taliban commander involved in the large-scale production of improvised explosive devices (IEDs).

Mohammed, who wants damages for unlawful detention and mistreatment that he contends breached the European Convention on Human Rights, was detained from April 7 until July 25 2010 when he was transferred into the hands of the Afghan authorities and sentenced to ten years imprisonment.

In the High Court, Mr Justice Leggatt found that Mohammed's arrest and initial detention for 96 hours was lawful but his continued detention on UK military bases for a further 106 days was unlawful.

Today, the Court of Appeal said that the Secretary of State was unable to show a lawful basis for the detention beyond 96 hours.

Mohammed, who was captured during an International Security Assistance Force operation in which three British servicemen were wounded and two insurgents killed, alleges he was tortured into giving a false confession after being transferred to the Afghan National Directorate of Security (NDS) facility at Lashkar Gah.

His allegations - particularly those of ill-treatment at the hands of UK armed forces - are strongly denied and the Defence Secretary wanted to contest them at a full trial but Mohammed's lawyers applied for preliminary issues, relating to the legality of his detention, to be determined.

The Lord Chief Justice, Lord Thomas, sitting with Lord Justice Lloyd Jones and Lord Justice Beatson, said the arrangements made by the Defence Secretary did not enable persons to be detained for longer than 96 hours and after that period they should have been handed over to the Afghan authorities or released.

The judges gave permission for an appeal to the Supreme Court in respect of two issues in the judgment.

Law firm Leigh Day, which represents Mohammed, said later that he was released from detention in Afghanistan early last year and is believed to be back with his family in Helmand.

Leigh Day partner Sapna Malik said: "On the 800th anniversary of the Magna Carta establishing that imprisonment should not occur without due legal process, the Court of Appeal's unanimous judgment is vitally important in upholding the rule of law even in the most trying of circumstances.

"The Lord Justices have rightly recognised the fundamental importance of the right to liberty, which requires a lawful authority for any detention and for core procedural safeguards to be afforded to a detainee, even in a situation of armed conflict."

Minister for the Armed Forces, Penny Mordaunt said: "We are extremely disappointed with this judgment and will be seeking leave to appeal to the Supreme Court.

"We were right to detain Serdar Mohammed who we believed to be involved in the production of IEDs on an industrial scale. During his capture our troops came under heavy fire, and three of them were wounded. The notion that dangerous insurgents cannot be detained for more than a few hours is ludicrous.

"Our Bill of Rights will help address these concerns as will other measures Ministers have been working on since the election. We will announce proposals later this year. This judgment further demonstrates the need to ensure the primacy of International Humanitarian Law such as the Geneva Conventions, which were designed for conflict situations.

"Our armed forces must be able to detain enemies who attempt to maim and kill UK service personnel and civilians. If the law does not allow that then the law must change."


From Belfast Telegraph