Rahmatullah SupCt Argu

8/11/2019 Rahmatullah SupCt Argu

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IN THE SUPREME COURT OF THE UNITED KINGDOM UKSC 2012/033

ON APPEAL FROM THE COURT OF APPEAL (CIVIL DIVISION)

B E T W E E N:

(1) SECRETARY OF STATE FOR FOREIGN AND

COMMONWEALTH AFFAIRS

(2) SECRETARY OF STATE FOR DEFENCE

Appellants

-and-

YUNUS RAHMATULLAH

Respondent

-and-

JUSTICE

Intervener

THE RESPONDENTS CASE

Introduction

1.

The Respondent, a citizen of Pakistan, was detained by British forces in Iraq

in February 2004. He was handed over to US forces:

a) subject to the terms of Memoranda of Understanding;

b) on the basis that the US would comply with its obligations under the

Geneva Conventions; and

Pursuant to the Memoranda and the Geneva Conventions the US had

undertaken that it would return him to UK custody promptly upon request.

2. The Respondent was then unlawfully taken to Afghanistan. He is now

detained at Bagram Air Force Base. In 2010, he was cleared for release by a

US military Detainee Review Board on the basis that he is not an Enduring


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Security Threat and his continued internment... is not necessary to mitigate

the threat he poses. Nevertheless, he has not yet been released.

3. The Appellants do not dispute that the Respondents detention is unlawful. He

has now been detained without charge or trial for over 8 years. For 6 years of

that period, the Respondent was held incommunicado.

4. On 14 December 2011, the Court of Appeal issued the writ of habeas corpus

(the First Judgment: [2011] EWCA Civ 1540).

5. Following a hearing on 20 February 2012, the Court held that the Secretaries

of State had made a sufficient return to the writ (the Second Judgment:

[2012] EWCA Civ 182).

6. The basic issue can be shortly stated. Have the Appellants effectively wash[ed

their] hands of any obligation to the Respondent and sold the pass with

regard to their ability to protect him in the future (First Judgment at [38],

Second Judgment at [16] per Lord Neuberger MR)?

7. The Court of Appeal granted the Appellants leave to appeal against the First

Judgment on 21 December 2011. The appeal raises five agreed issues:

a) the proper scope of the concept of control within the habeas corpus

jurisdiction;

b) the correct approach to the doubtful control line of authority;

c) the relevance (if any) of the forbidden non-justiciable territory of

foreign relations;

d)

the implications (if any) of the Act of State doctrine; and

e)

whether the proper test of control in habeas proceedings was met in

this case.

8. These issues are considered in turn below (the fifth is considered alongside the

first four). The Respondents case is, in summary:


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a) The Court of Appeal was correct to hold that the Appellants exercised

sufficient control over the Respondent, because the UK was entitled to

request his return, and the US had undertaken to comply with such a

request, pursuant to the Geneva Conventions relating to prisoners of

war (Geneva III) or civilians (Geneva IV) and/or the 2003 MoU

and/or the 2008 MoU.

b) Alternatively, if there is any doubt over the meaning or effect of the

Geneva Conventions or the MoUs, or any doubt over whether the US

would comply with its undertakings, the Court of Appeal was correct

to issue the writ to test the Appellants true degree of control over the

Respondent.

c) Both the Divisional Court and the Court of Appeal correctly held that,

where there is sufficient control (or sufficient doubt) to justify the issue

of a writ of habeas corpus, the writ will not be defeated by

considerations of foreign relations or the Act of State doctrine.

9. The Supreme Court granted Mr Rahmatullah leave to appeal against the

Second Judgment on 31 May 2012. Both appeals are to be heard together and

both are addressed in this case. For consistency, the Secretaries of State are

referred to throughout as the Appellants, and Mr Rahmatullah as the

Respondent.

10. In relation to the Second Judgment, the Respondents case is, in summary:

a) The Court of Appeal was wrong to hold that the doubt over the

Appellants degree of control had been resolved. Rather, the evidence

demonstrated that the US had neither refused to return the Respondent

nor contended that it was not obliged to return him.

b) The Court of Appeal was wrong to consider that foreign relations were

relevant to the issues arising on the return, when they had not been

relevant to the initial decision to issue the writ.


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11. The appeal against the Second Judgment is the only issue that directly

concerns Mr Rahmatullah. The appeal against the grant of the writ does not

prevent the writ running, or Mr Rahmatullahs right to be discharged pursuant

to the writ (section 15(4) of the Administration of Justice Act 1960).

Factual Background

Summary

12. The Respondent was detained by UK forces in Iraq in February 2004 and

handed over to US forces pursuant to the 2003 MoU. He was then transferredby US forces from Iraq to Afghanistan. He has been held at Bagram Air Base

in Afghanistan since about June 2004. At Bagram he is known as Salah

Mohammed Ali and has been given a Bagram Internment Serial Number of

1433. UK officials knew of the proposed transfer before it took place, but took

no steps to prevent it. It is common ground that the transfer should have been

questioned at the timebut was not (Secretary of State for Defence, Hansard,

26 February 2009, Col. 394).

13. The Respondent has now been in continuous detention without charge or trial

for over 8 years. His physical and mental state is reported to be very poor. He

was held incommunicado for 6 years and has only recently made telephone

contact with his family.

14. The Respondent is not able to give direct instructions to lawyers. The

application for the writ of habeas corpus was therefore brought on the

instructions of Mr Mounir Ahmed, his first cousin, with the Respondents

consent.

15. The allegation that the Respondent is or has been a member of Lashkar e

Tayyiba, made by the Secretary of State to Parliament and repeated without

any supporting evidence in the Appellants Case, is denied.

The detention and transfer


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16. On 9 September 2004, the then Minster for the Armed Forces, Mr Adam

Ingram MP, gave a written answer to a parliamentary question in which he

said:

All persons apprehended by the United Kingdom Forces in Iraq and

transferred to United States forces, and who are still in custody, remain

in Iraq.

17. This statement was untrue. The error was not corrected until 26 February 2009

when Mr Hutton MP, then Secretary of State for Defence, made a statement to

Parliament in which he described the capture and transfer of two individuals,

one of whom is the Appellant. Mr Hutton MP said:

[I]n February 2004 two individuals were captured by UK forces inIraq. They were transferred to US detention, in accordance with normal

practice, and then moved subsequently to a US detention facility in

Afghanistan. Following consultations with US authorities, we

confirmed that they transferred these two individuals from Iraq to

Afghanistan in 2004. They remain in US custody there. I regret that it is

now clear that inaccurate information on this particular issue has been

given to the House by my Department on a small number of occasions.

The individuals transferred to Afghanistan are members of Lashkar e

Tayyiba, a proscribed organisation with links to al-Qaeda. The US

Government has explained to us that they were moved to Afghanistanbecause of a lack of relevant linguists necessary to interrogate them

effectively in Iraq. The US has categorised them as unlawful enemy

combatants, and continues to review their status on a regular basis. We

have been assured that the detainees are held in a humane, safe and

secure environment meeting international standards consistent with

cultural and religious norms. The ICRC has had regular access to the

detainees. The review has established that officials were aware of this

transfer in 2004. In retrospect, it is clear to me that the transfer to

Afghanistan of these two individuals should have been questioned at the

time (emphasis added).

18. In a parliamentary written answer on 6 July 2009, Mr Ainsworth MP, the then

Secretary of State for Defence, responded to a question seeking further

information about these two individuals and the circumstances of their

detention. He said:

It is not the practice of this Department to release personal information,

such as the names of these two individuals. The individuals were initially

held at a US detention facility in Baghdad before they were transferred

to US detention facilities at Bagram Air Base in Afghanistan.


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The review examined the available historical records, which suggest that

British officials became aware of an intention to transfer in March 2004,

although this was some days after the initial capture had occurred.

British officials had learned by mid-June 2004 that the individuals had

been transferred to Afghanistan.

19. Further information about the circumstances of the detention and transfer was

provided in correspondence from the Treasury Solicitor dated 20 October

20091:

The two individuals were transferred to US forces custody

immediately after the operation in accordance with the memorandum of

understanding (the MOU) between the US, the UK and Australia

applicable at the relevant time About a month later UK officials

became aware of US intentions to transfer the two individuals to

Afghanistan. However, the UK was not formally consulted about the

proposed transfer, as required by the MOU. From subsequent exchanges

with US authorities this appears to have been because the US paperwork

on the transfer did not indicate UK involvement in the initial capture

(emphasis added).

20.

Further information about the circumstances of the Respondents detention

and transfer came to light as a result of a written answer from the Secretary of

State which was published in Hansard on 13 July 2011, after oral submissions

before the Divisional Court, but before judgment. The written answer states:

They were captured by UK forces in and around Baghdad in February

2004 and immediately transferred to US forces in Iraq The

individuals were then held in US detention at Balad and subsequently

transferred to a US detention facility in Afghanistan by August 2004.

UK forces did not undertake an assessment of whether or not the

individuals were prisoners of war because they were immediately

transferred to US forces for detention. As part of the review of the case

completed by officials between late 2008 and early 2009, the Ministry of

Defence (MOD) considered the status of the detainees and determined

that, as there was no information to suggest that they were members of

the armed forces of Iraq, they would not have been prisoners of war.

They may have been protected persons under the Geneva conventions,

subject to certain criteria being satisfied.

1That correspondence concerned a separate action in the Administrative Court for disclosure for thepurpose of assisting the Respondents case before the Detainee Review Board. After the Secretary ofState had served Summary Grounds resisting the claim, but before the determination of permission, it

became clear that the DRB had already taken place and had concluded in the Respondents favour.That claim therefore became unnecessary and was withdrawn by consent on the basis that there be noorder as to costs.


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21. To summarise:

a) the Respondent was captured by UK forces in Iraq in February 2004;

b)

contrary to the requirements of the 2003 MoU, the UK did notcategorise him as a prisoner or war or a civilian;

c) he was transferred to US custody pursuant to the 2003 MoU;

d) he was then detained by the US in Iraq;

e) the UK became aware that the US intended to transfer the Respondent

to Afghanistan in March 2004 (some days after the initial capture,

according to the Secretary of States written answer of 6 July 2009; or

about a month after their transfer to US custody, according to the

Treasury Solicitors letter of 20 October 2009);

f)

the USs intention to transfer the two individuals to Afghanistan

should have been questioned [by the UK] at the time, by reason of

the 2003 MoU, but was not; and

g)

it is unclear precisely when the Respondent was transferred to

Afghanistan. In the written answer of 6 July 2009, the Secretary of

State said, British officials had learned by mid-June 2004 that the

individuals had been transferred to Afghanistan. In the written answer

of 13 July 2011, the Secretary of State said that they were transferred

to Afghanistan by August 2004. (The Appellants Case states at

paragraph 2.17 that the individuals were transferred to Afghanistan in

March 2004: the Respondent assumes that to be an error.)

Memoranda of Understanding and Geneva Conventions

2003 MoU

22. The transfer of detainees from UK to US custody was governed by the 2003

MoU. The UK is the Detaining Power and the US is the Accepting Power

under the MoU. The MoU contained the following provisions:


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This arrangement establishes procedures in the event of the transfer

from the custody of either the US, UK or Australian forces to the

custody of any of the other parties, any Prisoners of War, Civilian

Internees and Civilian Detainees taken during operations against Iraq.

The Parties undertake as follows:

1. This arrangement will be implemented in accordance with the

Geneva Convention Relative to the Treatment of Prisoners of War and

the Geneva Convention Relative to the Protection of Civilian Persons

in Time of War, as well as customary international law

4. Any prisoners of war, civilian internees, and civilian detainees

transferred by a Detaining Power will be returned by the Accepting

Power to the Detaining Power without delay upon request by the

Detaining Power.

5. The release or repatriation or removal to territories outside Iraq oftransferred prisoners of war, civilian internees, and civilian detainees

will only be made upon the mutual arrangement of the Detaining

Power and the Accepting Power

9. The Detaining Power will be solely responsible for the classification

under Articles 4 and 5 of the Geneva Convention Relative to the

Treatment of Prisoners of War of potential prisoners of war captured

by its forces. Prior to such a determination being made, such detainees

will be treated as prisoners of war and afforded all the rights and

protections of the Convention even if transferred to the custody of an

Accepting Power (emphasis added).

23. Article 1 of the 2003 MoU states that it will be implemented in accordance

with [Geneva III] and [Geneva IV] as well as customary international law. It

uses the language of the Geneva Conventions (prisoner of war, civilian

internees), provides a procedure for the classification of detainees as

prisoners of war or civilians and requires detainees to be given all the rights

and protections of the Convention even if transferred to the custody of an

Accepting Power. Accordingly, the 2003 MoU can only be understood in the

context of Geneva III and Geneva IV, and the US Governments publicly

stated position on those Conventions as at 2003.

Geneva Conventions

24. Geneva III and Geneva IV provide for the main rights and obligations covered

by the 2003 MoU, including Article 4. Both the UK and the USA are

signatories to both Conventions.


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25. Geneva III concerns the treatment of prisoners of war. Geneva IV concerns the

protection of civilians in time of war.

26. If, as the Appellants contend, the Respondent is a civilian and Geneva IV

applies to him, then the position under Geneva IV is as follows.

27. The Respondents transfer to Afghanistan was a breach of Article 49 of

Geneva IV, which provides:

Individual or mass forcible transfers, as well as deportations

of protected persons from occupied territory to the territory of

the Occupying Power or to that of any other country, occupied

or not, are prohibited, regardless of their motive.

28.

His continued detention without trial despite the end of military operations,

and despite being cleared for release in 2010, is a breach of Article 132:

Each interned person shall be released by the Detaining

Power as soon as the reasons which necessitated his

internment no longer exist.

29. It is also a breach of Article 133:

Internment shall cease as soon as possible after the close ofhostilities.

30. By Article 6, the Respondent continues to benefit from Geneva IV

notwithstanding the close of military operations in Iraq: protected persons

whose release, repatriation or re-establishment may take place after such

dates shall meanwhile continue to benefit by the present Convention.

31. Pursuant to Article 147, unlawful deportation or transfer or unlawful

confinement of a protected person contrary to Article 49 is a grave breach of

Geneva IV. The transfer of the Respondent from Iraq to Afghanistan was

therefore a grave breach of Geneva IV.

32. Geneva IV also provides by Article 45 that, if protected persons are

transferred by the Detaining Power to another power, then that other power

must comply with a request by the Detaining Power for their return.


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33. In light of the Appellants position that the Respondent is a civilian, it is not

necessary to consider the position of prisoners of war under Geneva III

concerning prisoners of war. However, in summary, if the Respondent is a

prisoner of war then there has been a breach of Articles 84 and 118. By Article

12, the UK may request his return and the US must comply with that request.

34. The 2003 MoU would ordinarily have been unnecessary. The difficulty faced

by the UK that led to the 2003 MoU is explained in Beagent 2:

The prior background was that on 7 February 2002, the US

President announced the US Governments then view that the

Geneva Conventions did not apply to the conflict with Al-

Qaeda [D18]. It subsequently became apparent to HM

Government during 2002 that there had been several cases of

mistreatment of detainees, particularly in Afghanistan [D19].

Further, during 2002, it had become public knowledge that the

US Government was transporting detainees to Guantanamo

Bay and the UK Government had publicly expressed concerns

about this (whilst nevertheless carrying out interviews of

detainees there) [D20]. Throughout this period, it remained

UK government policy that the Geneva Conventions ought to

be complied with by the US Government.

35.

This is common ground. Parmenter 2 at paragraph 14 states:

In light of the known US position on the application of the

Geneva Conventions, it was considered politically important if

possible to seek a commitment from the US about adherence

to the Geneva Conventions standards (whilst recognising that

they had taken a public position of the application of the

Geneva Conventions in this context). It was therefore decided

that a memorandum of understanding (MOU) should be drawn

up between the UK and the US.

36.

The purpose of the 2003 MoU was to ensure that the US complied with the

Geneva Conventions, at least in relation to detainees transferred from UK

custody to US forces. One of the key featuresof the 2003 MoU was that it

allowed for the UK to retain full rights of access to any UK-detained persons

transferred to the custody of the Accepting Power, and that the UK could

request their return at any point. The UK was solely responsible for the

conduct of any tribunals to determine the status of personnel detained by the

UK(Parmenter 2, para. 22). Article 4 of the 2003 MoU also provided that arequest for the return of a detainee will be met, without delay.


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37. Mr Parmenter accepts that the MOD did indeed wish to seek to retain some

measure of influence over what happened to persons detained by UK forces

and then transferred to the US(Parmenter 2, para. 23).

38.

The 2003 MoU was motivated not merely out of concern that the UK

complied with its obligations under international law. A grave breach of the

Geneva Conventions is a domestic criminal offence. Section 1 of the Geneva

Conventions Act 1957 provides:

Any person, whatever his nationality, who, whether in or outside the

United Kingdom, commits, or aids, abets or procures the commission

by any other person of a grave breach of any of the scheduled

conventions or the first protocol shall be guilty of an offence.

39.

It was essential for the Appellants to be sure that the US would comply with

the Geneva Conventions in respect of prisoners transferred to US custody.

Otherwise, transfers of detainees to US custody would risk being a grave

breach of the Geneva Conventions and a domestic criminal offence would be

committed. In particular, the UK needed to ensure that when detainees were

transferred, they would be returned to UK custody upon request (Article 4 of

the 2003 MoU and Article 45 of Geneva IV) and would not be transferred outof Iraq (Article 5 of the 2003 MoU and Article 49 of Geneva IV). The 2003

MoU was designed to achieve these objects.

2008 MoU

40. A further MoU was negotiated over a long period between 2005-2008. US

Defense Secretary Robert Gates signed the 2008 MoU on 18 October 2008.

However, Mr Hutton MP did not sign it until 17 March 2009 (i.e. 3 weeks

after his statement to Parliament about the Respondent). The 2008 MoU is

stated to come into effect upon the date of signature(Article 11).

41.

Article 4 in the 2008 MoU is differently worded:

4. At all times while transferred detainees are in the custody and

control of U.S. Forces, they will treat transferred detainees in

accordance with applicable principles of international law, including

humanitarian law. The transferred detainees will only be interrogated


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in accordance with U.S. Department of Defense policies and

procedures (emphasis added).

42. The 2008 MoU was the product of several rounds of negotiation over a period

of years. In its final form, Article 4 provides that transferred detainees are to

be treated in accordance with applicable principles of international law,

including humanitarian law. The draft versions of the MoU contained

various formulations negotiated over several years:

will upon request and without delay return any security

internee or criminal suspect transferred to it by the other

Participant (January 2005 draft, Parmenter 2, para. 34)

the receiving Participant will at the request of the other

Participant return without delay any security interneetransferred temporarily to its custody (early 2006 draft,

Parmenter, para. 35)

applicable principles of international humanitarian law

and international human rights law, including common Article

3 to the Geneva Conventions (version 4)

applicable principles of international humanitarian law

and international human rights law (versions 5 and 7)

applicable principles of international law, includinghumanitarian law (version 6 and final version)

43. Mr Parmenter explains that:

MOD and FCO were satisfied that provision for treatment in

accordance with applicable principles of international

humanitarian law and international human rights law were

sufficient to meet appropriate legal and policy requirements

(Parmenter 2, para. 39).

44.

Mr Parmenter has misquoted the final version of the MoU, which does not

contain any reference to international human rights law but only to

international law. However, the point is clear the language changed but the

content of the undertaking did not. The US was agreeing to comply with

appropriate legal and policy requirements.The relevant legal requirements

of international humanitarian lawmust include the Geneva Conventions.

45.

The 2008 MoU therefore maintained the US Governments 2003 undertakingthat it would comply with the Geneva Conventions. It was couched in


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appropriate diplomatic code, but the effect was the same. Having ensured in

the 2003 MoU that the Geneva Conventions would be complied with, that

undertaking was not abandoned in 2008.

Detainee Review Board

46. On 5 June 2010, the US military held a Detainee Review Board hearing at

Bagram for the Respondent. The purpose of the hearing was to determine

whether it remained necessary to detain the Respondent. The DRB concluded

that the Respondents continued internment was no longer justified:

b. The continued interment of Salah Mohammed Ali (ISN

1433) is not necessary to mitigate the threat he poses.

c. Salah Mohammed Ali (ISN 1433) should be transferred to

Pakistan for release.

e. Salah Mohammed Ali (ISN 1433) is not an Enduring

Security Threat.

47. On 15 June 2010 Brigadier General Mark S. Martins of the US Army

approved the decision of the DRB. Nevertheless, the Respondent has not yet

been released. The reasons for this are unclear.2

Department of Defense text

48. On 22 June 2011, the US Department of Defense provided the UK with the

following text by way of further information (Wickremasinghe 2, paragraph

3):

Detainee is held by US Forces pursuant to the Authorization

to Use Military Force, as informed by the laws of war. Under

this authority, US forces in Afghanistan detain, inter alia,

persons who were part of, or substantially supported, Taliban

or al-Qa'ida forces or associated forces that are engaged in

hostilities against the United States or its coalition partners,

2

There are some indications in the documents for the June 2010 DRB that there was an earlier DRB inFebruary 2010 in which the Respondent was also cleared for release. However, the documents for thatDRB have not been disclosed.


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including any person who has committed a belligerent act, or

has directly supported hostilities, in aid of such enemy forces.

The detainee has been determined to meet this criteria and

remains under US control, subject to further reviews by a

board of officers, empowered to direct his release should he be

determined not to meet the standard for detention. This boardwill consider the detainee's case at regular six month intervals

for so long as the detainee remains in DoD custody. In

addition to directing release for those detainees who do not

meet the standard for detention, the review board may

recommend alternative disposition options, including lawful

transfer to the detainee's home country for prosecution or

participation in rehabilitation or reconciliation programs. Such

recommendations are advisory only, and subject to other

considerations including a prudential review the detainee's

background and terrorist or insurgent connections; of the

security situation in the receiving country, including al-Qa'idaand Taliban and associated forces presence and activity; and

the ability of the receiving country to lawfully and adequately

mitigate the risk of the detainee if transferred.

This text is silent on the MoUs; the US understanding of its obligations under

the Geneva Conventions; and (crucially) whether the Respondent would be

returned to UK custody upon request made pursuant to the MoUs or the

Geneva Conventions.

The writ and the return

49. The Court of Appeal issued the writ on 14 December 2011, with a return date

of 21 December 2011. The return date was enlarged on two occasions, until 20

February 2012.

50. The First Appellants return consisted of a witness statement from Tom Drew

dated 13 February 2012, which was adopted on behalf of the Second

Appellant by a witness statement of Paul Vincent Devine dated 14 February

2012.

51. Exhibited to Mr Drews statement were (among other things):


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a) A letter from the Foreign and Commonwealth Office dated 16

December 2011 requesting the Respondents transfer to UK custody in

order for him to be released; and

b)

A response dated 1 February 2012 from Mr Lietzau, the USs Deputy

Assistance Secretary of Defense for Rule of Law and Detainee Policy.

52. Mr Lietzaus letter stated that:

Rahmatullah has been identified by a DRB as someone who

could be transferred under appropriate circumstances. The

board in this case, based on the information available to it,

made a finding that the threat Rahmatullah posed could be

mitigated if he was transferred to Pakistan with appropriate

security assurances. This recommendation is but one

component of a transfer process. Before we transfer third-

country nationals from U.S. custody at the DFIP [Detention

Facility in Parwan], we independently determine using

information the DRB relied upon as well as relevant

information not necessarily available to the Board whether

any threat posed by the detainee can be adequately mitigated

by the receiving country. Accordingly, we seek appropriate

security assurances when we transfer a detainee who is being

detained pursuant to the AUMF [Authorization for Use of

Military Force against Al Qaida], as informed by the laws of

war, regardless of whether the transfer is to be to thedetainees home country or to a third country. Generally, these

security assurances commit the receiving country to take

measures that are necessary, appropriate, and lawfully

available, to ensure that the detainee will not pose a threat to

the receiving country or to the United States. In addition to

security assurances, we seek humane treatment assurances in

order to ensure that, upon transfer, the detainee will be treated

humanely, consistent with applicable international law.

Normally, unless there is an obstacle to repatriation, transfer

discussions in circumstances such as these would involve thedetainees home country. We have already received a request

from the Government of Pakistan for Rahmatullahs

repatriation, and we believe it may be more appropriate to

discuss the conditions of transfer directly with the

Government of Pakistan.

I look forward to discussing this matter further with you.

53. Mr Drews witness statement stated at paragraph 15:

The US authorities, in suitably diplomatic language, haveeffectively declined the Respondents request that the


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Appellant be transferred to UK custody in order that he be

released.

54. Similarly at paragraph 19:

I should add that we are clear that the letter is a definitivestatement of the US position, which sets out their views

clearly and, we believe, is the result of careful consideration

over a number of weeks.

55. Mr Drew later provided a second witness statement dated 17 February 2012.

In that statement, Mr Drew described at paragraph 6 a meeting on 24 January

2012 between Mr Lietzau and a UK official:

The meeting had been arranged to discuss matters unrelated

to YR. However, that morning the Washington Post hadpublished an article relating to YR and, at the very end of the

meeting, Mr Lietzau referred briefly to the article. He

remarked informally that the US was considering how to

respond to the UKs letter of 16 December 2011 and

mentioned, in the context of the press article, that the response

might describe the procedures the US authorities would need

to go through with the UK to determine if release of YR were

appropriate, and invite us to begin a dialogue.

56. The Court of Appeal held in the Second Judgment that the return was

sufficient, and discharged the writ.

Habeas corpus: The English authorities

Background

57. Blackstone described the writ of habeas corpus ad subjiciendumas follows:

[T]he great and efficacious writ in all manner of illegal

confinement, is that of habeas corpus ad subjiciendum; [].

This is a high prerogative writ, [] running into all parts of

the kings dominions: for the king is at all times entitled to

have an account, why the liberty of any of his subjects is

restrained, wherever that restraint may be inflicted.3

3William Blackstone, Commentaries on the Laws of England (1765), Chicago: University of Chicago

Press, 1979, vol. I, p. 131.


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58. As Taylor LJ stated in R v Secretary of State for the Home Department, ex

party Muboyayi [1992] Q.B. 244, at 269:

The great writ of habeas corpus has over the centuries been a

flexible remedy adaptable to changing circumstances.

59. In the Court of Appeal in the present case, Lord Neuberger MR summarised

the authorities:

43. ... while it is important not to be seduced by romantic notions or

purple prose, it remains the fact that habeas corpus has, as Laws LJ

said at [2011] EWHC 2008 (Admin), para 11 been described as

"perhaps the most important writ known to the constitutional law of

England, affording as it does a swift and imperative remedy in all cases

of illegal restraint or confinement" (O'Brien [1923] AC 603 per LordBirkenhead at 609), and as "the most efficient protection yet developed

for the liberty of the subject" (Ex p. Mwenya [1960] 1 QB 241 perLord Evershed MR at 292, citing Holdsworth,History of English Law,

vol. 9 pp. 108-125).

60. One problem which the law has long had to confront is where a detainee is

sent out of the ordinary jurisdiction of the courts to a place where it is hoped

that the writ of habeas corpus will not run. The common law has never

responded favourably to such conduct. In the 1660s, after the restoration, the

English practice was to send the prisoner to Scotland or one of the Channel

Islands in the hope of evading the jurisdiction of the Court of Kings Bench.

The Court nevertheless issued the writ to jailers in those territories. See

HallidayHabeas Corpus: From England to Empire(2010) p. 240 and fn. 103-

104, Farbey & Sharpe The Law of Habeas Corpus 3rdEd. (2011) pp. 15-17

and Jonathan Gaunt QC Charles II and Englands Guantanamo Bay (2011).

Guantanamo Bay and Bagram are in many respects a more modern equivalent

of these practices.

61. Parliament also responded by passing the Habeas Corpus Act 1679 (an Act

for better securing the Liberty of the Subject and for Prevention of

Imprisonments beyond the Seas). The Act remains in force. Section 11 (in its

current, amended form) provides:

And for preventing illegall Imprisonments in Prisons beyond

the Seas noe Subject of this Realme that now is or hereaftershall be an Inhabitant of Resiant of this Kingdome of England


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Dominion of Wales or Towne of Berwicke upon Tweede shall

or may be sent Prisoner into Scotland Ireland Jersey Gaurnsey

Tangeir or into any Parts Garrisons Islands or Places beyond

the Seas which are or at any time hereafter [shall be] within or

without the Dominions of His Majestie His Heires or

Successors and that every such Imprisonment is herebyenacted and adjudged to be illegall

the person or persons who shall knowingly frame contrive

write seale or countersigne any Warrant for such

Committment Detainer or Transportation or shall soe committ

detaine imprison or transport any person or persons contrary

to this Act or be any wayes adviseing aiding or assisting

therein being lawfully convicted thereof shall be disabled from

thenceforth to beare any Office of Trust or Proffitt within the

said Realme of England Dominion of Wales or Towne of

Berwicke upon Tweede or any of the Islands Territories orDominions thereunto belonging and [be liable to

imprisonment for life] and be incapeable of any Pardon from

the King His Heires or Successors of the said . . . Disabilities

or any of them.

62. Another problem long known to the law is the question of how far the courts

should go in questioning the facts contained in a return to the writ. The

common law position was uncertain. The position was clarified by the Habeas

Corpus Act 1816, which provides by section 3:

3. Judges to inquire into the Truth of Facts contained in

Return.

In all cases provided for by this Act, although the return to any

writ of habeas corpus shall be good and sufficient in law, it

shall be lawful for the justice or baron, before whom such writ

may be returnable, to proceed to examine into the truth of the

facts set forth in such return by affidavit; and to do therein as

to justice shall appertain; and if such writ shall be returned

before any one of the said justices or barons, and it shallappear doubtful to him on such examination, whether the

material facts set forth in the said return or any of them be true

or not, in such case it shall and may be lawful for the said

justice or baron to let to bail the said person so confined or

restrained, upon his or her entering into a recognizance with

one or more sureties, or in cases of infancy or coverture, or

other disability, upon security by recognizance, in a

reasonable sum, to appear in the court of which the said

justice or baron shall be a justice or baron upon a day certain

in the term following, and so from day to day as the court

shall require, and to abide such order as the court shall makein and concerning the premises; and such justice or baron shall


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transmit into the same court the said writ and return, together

with such recognizance, affidavits; and thereupon it shall be

lawful for the said court to proceed to examine into the truth

of the facts set forth in the return, in a summary way by

affidavit, and to order and determine touching the discharging,

bailing, or remanding the party.

63.

The burden of proving the facts on a return is on the respondent. Furthermore,

as such cases involve issues of personal liberty, the degree of probability

required will be high: R v Home Secretary, ex parte Khawaja[1984] AC 74

per Lord Fraser at 97G.

The Barnardo litigation4

64. Several habeas corpus cases were brought against Dr Barnardo for removing

children from their parents and sending them abroad.

65. The first case of note was brought by the mother of Martha Ann Tye. The

child had been placed by agreement in one of Dr Barnardos homes for

destitute children. When Marthas mother requested her return, she was

handed over, without the mothers knowledge, to a Mme Gertrude Romand,

who took her first to Europe and then to Canada. In the ensuing habeas corpus

proceedings, Dr Barnardo insisted that he had parted with custody of the child

and could not get her back.

66. The Court of Appeal held that to be an insufficient reason not to issue the writ

(R v Barnardo (1889) 23 QBD 305 Tyes case)). Lindlay LJ summarised the

Courts approach: Persons who illegally put a child out of their power do so

at their own peril, and, if they are ordered to produce the child, no excuse

founded on their own inability to comply with the order will be held a

sufficient answer to the writ(ibid at 316).

67. The approach of the Court of Appeal in Tyes casewas disapproved by the

House of Lords in the case of Henry Gossage.

4The Respondent is very grateful to Michael Lobban (Professor of Legal History at Queen Mary

College, University of London) for his research on the history of the Barnardo litigation.


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68. Gossage had been handed to Dr Barnardo on 25 September 1888 by the poor

law authorities of Folkestone. Originally from Worcestershire, the boy had

(according to Barnardo) been given by his drunken and dissolute mother to

two organ grinders, in exchange for money. He had been found by a Rev. E.

Husband, who had contacted Barnardo. The boy had entered Dr Barnardos

home with the mothers consent. Two months later, on 10 November,

Barnardo received a letter from a Mr Newdigate from Leamington, who had

been contacted by the mother, who wanted the child to be put into a Catholic

home.

69. On the same day that the letter was written, Dr Barnardo claimed to have first

met William Norton, a Canadian, who had lost his son, and wanted another to

adopt. On 16 November, Dr Barnardo entrusted the boy to the Canadian, who

did not want to disclose his address, since (it was claimed) in Quebec (where

he lived), it was common for birth parents to seek to obtain the return of their

children. Dr Barnardo seemed to know very little of this man, having little

more than a letter of recommendation from a Presbyterian minister, whose

name Dr Barnardo could not recall.

70. The childs mother sought and obtained a writ of habeas corpus from the

Queens Bench Division, which was upheld by the Court of Appeal ([1890] 24

QBD 283). Both courts followed the approach of the Court of Appeal in

Martha Tyes case. Dr Barnardo appealed to the House of Lords (Barnardo v

Ford [1892] AC 326).

71. Dr Barnardos appeal was unsuccessful because it transpired that the childs

mother intended to raise further questions of evidence on the return to the writ,which she was entitled to do (Lord Halsbury at 332-333). However, the House

of Lords also disapproved of the law stated in Tyes Case. Lord Halsbury

stated at 333:

[] I cannot acquiesce in the view that some of the learned

judges below seem to have entertained, that if a Court is

satisfied that illegal detention has ceased before application

for the writ has been made, nevertheless the writ might issue

in order to vindicate the authority of the Court against aperson who has once, though not at the time of the issue of the


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writ, unlawfully detained another or wrongfully parted with

the custody of another. My Lords, this is a view that I cannot

agree to. I think, under such circumstances, the writ ought not

to issue at all, as it is not the appropriate procedure for

punishing such conduct.

Of course, where a counterfeited release has taken place, and a

pretended ignorance of the place of custody or of the identity

of the custodian is insisted on, a Court may and ought to

examine into the facts by the writ of habeas corpus, because

the detention is in fact being continued by someone who is

really the agent of the original wrong-doer to continue and

persist in the unlawful detention.

72. Lord Herschell stated at 339-340 (emphasis added):

But the question remains whether, even assuming that thedecision in Reg. v. Barnardo, Tye's Case was not well

founded, the appellant is entitled to have the order that the

writ should issue discharged. I have already given my reasons

for thinking that this House cannot reject as incompetent an

appeal against an order for the issue of a writ of habeas

corpus; but I feel most strongly that such appeals are not to be

encouraged. Where any tribunal believes that a person is or

may be under detention in unlawful custody, and issues a writ

of habeas corpus accordingly, no Court of Appeal ought

lightly to interfere with the issue of the writ. The order for itsissue ought only to be set aside if there be, beyond question,

no ground for it. If, for example, in the present case it had

been an admitted fact that before notice of the application for

the writ the appellant had ceased to have the custody of or any

control over the boy alleged to be detained, that might have

been ground for reversing the order of the Queen's Bench

Division. But where the Court entertains a doubt whether this

be the fact, [i.e., whether custody or control has ceased prior

to the application for issue of the writ] it is unquestionably

entitled to use the pressure of the writ to test the truth of the

allegation, and to require a return to be made to it. Now, it isimpossible to read the judgment of the Lord Chief Justice

without seeing that he did entertain such a doubt, and that he

was not prepared upon the affidavits to accept as conclusive

the statements of the appellant. At your Lordships' bar the

counsel for the respondent contended that they had a right to

cross-examine the appellant, and that the proper occasion on

which to try the question was when he had returned to the writ

that he was not detaining the child, and that it was not, at the

time the writ was issued, in his custody, power, or control. I

think this view is the correct one; the truth of the return may,

no doubt, be put in issue, and I feel myself unable to adviseyour Lordships that the Queen's Bench Division were not in


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point of law justified in issuing the writ. I must not be

understood as indicating that I think the story told by the

appellant is untrue. But, as the matter is to undergo further

investigation, it would obviously be improper to enter upon

any discussion of the statements contained in the affidavits, or

to express any opinion upon them. I come to this conclusionwith some regret, as the question intended to be raised by this

appeal is one of no small importance. But, in my opinion, it

was premature to raise it at the present stage, and I think it

very important not to set a precedent which might prove

prejudicial to the liberty of the subject of which the writ of

habeas corpus is the most effectual safeguard.

73. The writ could not be used as a form of punishment or as a remedy for a past

wrong (as Lindley LJs dictum seemed to imply); but it could be used to test

whether the defendant had any real ability to return the person.

74. The decision of the House of Lords was not the end of the matter. Dr

Barnardos return stated that Henry Gossage had not been in his custody,

power, or control since 16 November 1888. Dr Barnardo also denied any

communication with William Norton since that date:

I have by my agent in Canada, and by employing skilled

detectives, sought and endeavoured, and am still seeking andendeavouring to the best of my ability, to discover the said

Henry Gossage, but I have been hitherto unable to discover

him or to obtain intelligence or information about him [...] and

I am therefore unable further to obey the writ. (The Queen v

Barnado. In the Matter of Gossage, An Infant:TheTimes,2

November 1892, 3c.)

75. Mrs Fords lawyers wished to traverse the return. The court agreed to

investigate the truth of the return, and gave time for the filing of further

affidavits (The Queen v Barnardo (Re Gossage) in Daily News8 November1892).

76. The matter was not finally determined until May 1893, when the case came

before Baron Pollock and Hawkins J. On that occasion, Dr Barnardo was

required to supplement the information in his affidavit by giving evidence in

court. In the end, the Court accepted reluctantly that Dr Barnardo was unable

to do anything more to return the boy to his mother:


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Justice Hawkins said that the circumstances under which the boy was

parted with created suspicion, and the shifty nature of the

correspondence increased that suspicion. The affidavits went to show

that there was no such person as Mr William Norton, of Quebec, and

the circumstances made him extremely suspicious as to the truth of the

return. (The Queen v Barnardoin The Standard, 19 May 1893).

OBrien

77. InR v Secretary of State for Home Affairs, ex parte OBrien[1923] 2 KB 361

(OBrien), the applicant was detained in London in a purported exercise of

emergency powers. He was immediately transferred to Mountjoy Prison in

Dublin and held by the independent Irish Free State pursuant to an informal

arrangement between the Secretary of State and the Free State Executive.

78. OBrien sought a writ of habeas corpus. He contended that his detention was

unlawful and that the Secretary of State had sufficient control over him for the

writ to be issued. Despite protestations by the Secretary of State that OBrien

was under the control of the independent Free State government, the Court of

Appeal (Bankes, Scrutton and Atkin LJJ) issued the writ and rejected the

Attorney Generals submission that the Court had no jurisdiction to do so (p.

369).

79.

Scrutton LJ noted that OBriens case raised:

Questions of great importance regarding the liberty of the

subject, a matter on which English law is anxiously careful,

and which English judges are keen to uphold This case is

not to be exercised less vigilantly, because the subject whose

liberty is in question may not be particularly meritorious. It is

indeed one test of belief in principles if you apply them to

cases with which you have no sympathy at all It is quite

possible, even probable, that the subject of this case is guilty

of high treason: he is still entitled only to be deprived of his

liberty by due process of law (p. 382).

80. Scrutton LJ continued:

he was arrested by police officers at his house in London

and taken the same day to Liverpool and Dublin, where hewas confined in Mountjoy Prison. He has now been in that


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prison for nearly two months; he has not been brought before

any Court for trial, and it is apparently not the intention of

those who hold him to bring him before any Court. He has not

been informed of the evidence on which an order was made

for his arrest, but is offered an opportunity of appearing before

a committee meeting in private but presided over by aneminent ex-judge. He is apparently imprisoned without trial

for a sentence of indefinite duration, and the Home Secretary

who ordered his arrest and deportation to Ireland states to the

Court by his counsel, the Attorney General, that the Home

Secretary cannot release him. Before the war it is almost

impossible to conceive that such a state of things could exist

in England.

81. The test was set out by Scrutton LJ at p. 391:

I do not wish to tie myself to the exact degree of power over

the body which justifies the issue of the writ, for various high

authorities have used different words. Lord Herschells

language is custody, power or control, Lord Macnaghtens

under control or within reach; Lord Halsburys wrongful

detention by himself or his agent. The facts of the present

case are that the Secretary of State has told the House of

Commons: In my opinion the government has not lost

control we have a complete control over the position in

which the internees are placed He now says on affidavit

that the prisoner is in the custody or control of an Irish officialwho is not subject to the orders or direction of the Home

Secretary or the British Government. On this conflicting

evidence, all proceeding from the Home Secretary himself, it

appears to me quite doubtful whether or not, if an order is

made for the production of the body, the Home Secretary can

or cannot produce that body. Under these circumstances I

think the proper course to follow is that affirmed by the House

of Lords inBarnardo v. Ford. There Dr. Barnardo alleged on

oath that before the issue of the writ he had parted with the

body to an independent person; that he did not know where

that person or the body were, and had no means ofcommunicating with them; the applicants disputed this on

various grounds, and the House of Lords affirmed the order of

the Court of Appeal and ordered the writ to issue in order that

a return might be made to it, on which return the truth might

be ascertained. It may be that on hearing that in the opinion of

this Court the order was issued without legal authority, the

Home Secretary with the assistance of the Irish Free State

Government will produce the body, as it is hardly in the

interests of either Government to act illegally. For these

reasons I think that the rule should be made absolute for the

writ to issue on the terms of the rule nisi.


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82. Atkin LJ agreed:

the question is whether there is evidence that the Home

Secretary has the custody or control of the applicant. Actual

physical control is obviously not essential

In all cases of alleged unjustifiable detention such as arise on

applications for the writ of habeas corpus the custody or

control is ex hypothesi unlawful; the question is whether it

exists in fact. In the present case there may be some doubt.

The Home Secretary by the Attorney-General alleged that he

has no control; on the other hand the applicant by his affidavit

submits reasons for supposing that the Home Secretary is in a

position by agreement to cause him to be returned to England,

while the answer of the Home Secretary does not in terms

deny that he is in such a position; and refrains from stating

that he has no control.

The affidavit states that the applicant is in the control of the

governor of the prison, and is not subject to the Home

Secretary's orders, but this is by no means inconsistent with an

agreement with the Free State Government to return on

request. I think moreover that the applicant strengthens his

case by the reference to the debate in Parliament on Monday,

March 19, 1923, a report of which was put in. []

There is, to say the least, grave doubt whether he is or not still

in the custody or control of the Home Secretary this Court

should order the writ to go addressed to the Home Secretary in

order he may deal fully with the matter, and if he has in fact

parted with control show fully how that has come about. The

rule must be made absolute. (pp. 398-9).

83. Bankes LJ reached the same conclusions at p. 381:

The last point for consideration is whether a writ ought to be

issued directed to the Home Secretary having regard to the

contention of the Attorney-General, which was accepted bythe Divisional Court, that as the applicant had been deported

to and was interned in the Irish Free State the Home Secretary

had no longer any power or control over him except in so far

as the Government of that State had agreed that, in the event

of the advisory committee deciding that he ought not to have

been deported and interned, they could release him. From the

statements made in the House of Commons to which we have

been referred it would appear that the Home Secretary was at

the time he made those statements under the impression that

he had not lost control over the persons who by his orders had

been interned in the Irish Free State. In his affidavit he statesthat the Governor of the Mountjoy Prison is an official of the


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Free State Government, and is not subject either to his orders

or to those of the British Government. This is no doubt an

accurate statement in reference to the Governor of the prison,

but it leaves the question in doubt how far, if at all, by

arrangement with the Free State Government the body of the

applicant is under the control of the Home Secretary. Thisquestion cannot, I think, be satisfactorily disposed of unless

the rule is made absolute which will give the Home Secretary

the opportunity, if he desires to take advantage of it, of

making the position clearer than at present it appears to be.

This was the course taken inBarnardo v. Ford, and is, in my

opinion, the appropriate course to take in the present case. The

order, therefore, is made absolute.

84. The Secretary of States appeal to the House of Lords was dismissed on

jurisdictional grounds, accompanied by statements of the importance of thewrit (Secretary of State for Home Affairs v OBrien [1923] AC 603). Lord

Birkenhead said at 609:

We are dealing with a writ antecedent to statute, and

throwing its root deep into the genius of our common law It

is perhaps the most important writ known to the constitutional

law of England, affording as it does a swift and imperative

remedy in all cases of illegal restraint or confinement. It is of

immemorial antiquity, an instance of its use occurring in the

thirty-third year of Edward I. It has through the ages beenjealously maintained by Courts of Law as a check upon the

illegal usurpation of power by the Executive at the cost of the

liege.

85. Lord Atkinson dissented on the jurisdiction point and would have heard the

appeal, but approved the analysis of the Court of Appeal at 624:

Neither can, I think, the order of May 9, 1923, be treated as

an abortive order. It operates with coercive force upon the

Home Secretary to compel him to produce in Court the bodyof the respondent. If the Executive of the Free State adhere to

the arrangement made with him he can with its aid discharge

the obligation thus placed upon him. If the Irish Executive

should fail to help him he would be placed in a very serious

position. Unless this Executive breaks what has been styled its

bargain with the Home Secretary he had, in effect, the

respondent under his power and control. It would be rather

unfair to this Executive to assume gratuitously beforehand that

it would not keep the bargain made with it, simply because

that bargain was not enforceable at law. (emphasis added)

86. On the return date, the Secretary of State produced a factual return and:


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He produced the body of the said Art OBrien in Court.

OBrien was thereupon discharged (p. 400).

87. Three weeks later, Royal Assent was given to the Restoration of Order in

Ireland (Indemnity) Act 1923. The Act was passed because of the clear breach

of the 1679 Act in sending OBrien to Ireland:

So real did the danger seem to those in authority that an Act

of Indemnity was hastily passed in order to rescue these

gentlemen (one of them the principal Law Officer of the

Crown) from the unpleasant possibility of going to prison for

life, forfeiting all their property, being perpetually disqualified

from holding public office, and becoming incapable of any

pardon (Chandler, Praemunire and the Habeas Corpus Act

(1924) 24 Columbia LR 273).

Zabrovsky

88. The Appellants rely onZabrovsky v General Officer Commanding Palestine &

another [1947] AC 2465. Mr Zabrovskys son, a Palestinian citizen, was

detained under emergency powers regulations. He was issued with an order

requiring him to leave Palestine and then transported to a military detentioncamp in Eritrea. An application for the writ of habeas corpuswas made in the

Supreme Court of Palestine, against the British Officer commanding Mandate

Palestine and the police.

89. On appeal, the Privy Council held that the order for the banishment of Mr

Zabrovskys son was lawful:

In the troublous times of war and in the chaotic post-war conditionsthe scope of legal and permissive interference with personal liberty has

been extended and restraints have been legalised by the legislature

which would not have been accepted as legitimate in normal times.

Thus in England, in what are called the Reg. 18B cases, Liversidge v.

Sir John Anderson the House of Lords upheld the legality of a

detention of the applicants by the Executive without trial and also held

that the Executive could not be compelled to give reasons for the

detention

5Zabrovskywas not cited in the Courts below.


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the effect of the decisions is to vest a plenary discretion in the

Executive, affecting the liberty of the subject and pro tanto to

substitute the judgment of the court, based on ordinary principles of

common law right, the discretion of the Executive acting arbitrarily in

the sense that it cannot in substance be inquired into by the court. (pp.

255-256).

90.

The Privy Council also held that there was no evidence before the court

which would justify the allegation that Eliezer was being detained by the

respondents or one of them (p. 259). Further:

when the court made the order neither respondent had the deportee

in his custody or control nor had either of them any power to produce

the body (p. 259).

91.

OBrienwas distinguished on the basis that the deportation order in that case

was unlawful. In addition, the view of the Privy Council was that there was no

evidence of control. The Respondents had no control over the continued

detention of Mr Zabrovskys son. There was no evidence of any arrangement

that Mr Zabrovskys son would be returned upon request, nor was there any

reason why any such request should be made, given that he had been lawfully

deported.

92. Zabrovsky was cited in the Bancoult litigation concerning the Chagos

Islanders. Lord Mance (in a dissenting judgment) noted that Zabrovsky relied

on Liversidge v Anderson and that precedent is not a happy one [2009] 1

AC 453 at [158]. The majority did not refer toZabrovsky. Sedley LJ expressed

the same view in the Court of Appeal ([Zabrovsky] ought in my view to be

regarded as the majority decision inLiversidge v Andersonis now regarded

as expediently and, at that time, excusably, wrong per Sedley LJ at [2008]

QB 354 at [52]).

Mwenya

93. In ex parte Mwenya [1960] 1 QB 241 Mr Mwenya had been required by the

Governor of Northern Rhodesia to remain within the Mporokoso District of

Northern Rhodesia. He sought habeas corpusso as to permit him to leave the


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District. The application named three respondents: the Governor of Northern

Rhodesia, the District Commissioner for the Mporokoso District, and Her

Majesty's Secretary of State for the Colonies.

94.

The Divisional Court rejected the application for the writ against the Secretary

of State on the grounds that he did not have the requisite custody or control.

Parker CJ said at 279-280:

Reliance was further placed by the applicant on Barnardo v.

Ford, andRex v. Secretary of State for Home Affairs, Ex parte

O'Brien. Both those cases are authority for the proposition that

the writ will issue not only to the actual gaoler but to a person

who has power or control over the body. Further, in O'Brien's

case the writ was issued to the Secretary of State for HomeAffairs, who had in fact handed the physical custody of the

body over to the Government of the Irish Free State. It is

clear, however, from the facts of that case, that the Secretary

of State had not only been responsible for the original

detention but that there were strong grounds for thinking that

in handing over the body to the Government of the Irish Free

State he had not lost all control over it. In those circumstances

the court decided to issue the writ in order that the full facts

could be investigated and argument heard on the return.

The position here is quite different. The restriction ordersunder which the applicant is detained were not made by the

Secretary of State. His approval or consent was not required

and there is no evidence that he took any part in the detention.

No doubt the writ will issue not only to a person who has the

actual custody but also to a person who has the constructive

custody in the sense of having power and control over the

body. Here, however, we can find no custody by the Secretary

of State in any form.

We were referred to a number of provisions in the constitution

of, and in other legislation in regard to, Northern Rhodesiaunder which the Secretary of State is specifically given certain

powers, and powers which extend beyond advice. But we find

it impossible to say that as a result of those powers he can be

said to have the custody of the body in any sense. Apart from

the powers given by such legislation the only powers of the

Secretary of State arise by reason of his constitutional position

under which he advises Her Majesty. The fact, however, that

he can advise and attempt to persuade Her Majesty to cause

the body to be brought up does not mean that he has such a

control as will enable the writ to issue. Nor is it in our view

relevant that if the writ were issued the Secretary of State

might well feel it proper to influence the production of the


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body. Accordingly, while agreeing that there may be special

circumstances in which a Secretary of State is amenable to the

writ, we can find nothing in the facts of this case which would

justify us in calling upon him to produce the body. That being

so, we intimated our decision to that effect and this made it

unnecessary to proceed further with the case.

95.

The Divisional Court also rejected the application for the writ against the

Governor of Northern Rhodesia and the District Commissioner for the

Mporokoso District, on the basis that the court had no jurisdiction to issue the

writ to custodians in Northern Rhodesia.

96. On Mwenyas appeal to the Court of Appeal, only the issue relating to the

jurisdiction of the court to issue to writ to custodians in Northern Rhodesia

was argued (p. 280). The appeal on that limb was successful on the basis that

Northern Rhodesia was indistinguishable from that of a British colony or a

country acquired by conquest (p. 302).

Re Sankoh

97.

Re Sankoh[2000] EWCA Civ 386 concerned the leader of the Revolutionary

United Front in Sierra Leone. He was arrested in Sierra Leone and detained.

The UK armed forces provided a helicopter to the Sierra Leone Police to

enable them to move the applicant twice during one day. Sankoh was also

given some limited medical attention during and before the flights. At no point

was he held by UK forces. There was no evidence of an agreement or

understanding with the Sierra Leone government. Further, as at the date of the

application, the UK had no knowledge of Mr Sankohs whereabouts.

98. Laws LJ, with whom the other members of the Court of Appeal agreed,

distinguished OBrien on the grounds that there was not a whisper of an

objective basis for the suggestion that the Secretary of State has now

anything amounting to a degree of control such as might justify the issue of a

writ of habeas corpus(Re Sankoh at [12]).


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Habeas corpus: Application of the English authorities in other countries

Supreme Court of Zambia

99.

The Supreme Court of Zambia heard issues very similar to those which arisein the present case in Shipanga v Attorney General [1976] Zambia Reports

224, in International Law Reports Vol. 79, 1989, pp.18-47 (Shipanga).6

100. Shipanga concerned the detention of a Namibian who was the Information

Secretary of a liberation movement, the South West Africa Peoples

Organization (SWAPO). In the course of factional disagreements within

SWAPO, he was held by SWAPO, with the support of Zambian forces, in a

camp in Zambia. He was moved to Tanzania shortly before the case came

before the Supreme Court. The case therefore concerned an application for

habeas corpusby a foreign national being held in a third country.

101.

The Supreme Court considered the English authorities at some length. The

majority concluded that the writ should issue. Baron DCJ stated at 43:

I have cited all these dicta, and at length, in order to

demonstrate the great weight of high authority on this subject,all of which is to the effect that where there is doubt as to

whether the respondent has relinquished all control the writ

should issue. On the facts before us, can this be said with

certainty? I entertain no doubt that it cannot. The learned

Attorney-General has stressed the political nature of the

circumstances surrounding this application and the appellants

departure from Zambia: since, if my views are accepted, there

will be a return I prefer to say as little as possible about the

appellants departure from the jurisdiction while the matter

was pending before this court. But certain facts are quite clear

on the affidavits; the relationship between the ZambianGovernment and the SWAPO leadership is obviously close

and cordial, and it goes without saying that Zambia and

Tanzania are on the friendliest of terms.

102.

Drawing a comparison with OBrien, Baron DCJ stated at 43-44 (emphasis

added):

The decision rested on the doubt as to whether or not the

Home Secretary, by virtue of the agreement between England

6Shipangawas not cited in the courts below.


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and the Irish Free State, was able to secure the return of the

applicant. The precise measure of this ability was the subject

of conflicting statements by the Home Secretary himself. In

the present case there is no evidence of any formal agreement

between Zambia and either SWAPO or Tanzania on the point;

but with these qualifications there are close affinities betweenthis and OBriens case, where the applicant was in fact

brought before the court on the return. Bearing in mind the

political relationships and realities, I find it difficult to believe

that the absence of formal agreements will make any

difference; it is difficult to imagine that a request from Zambia

to SWAPO for the appellants return would not result in his

being returned.

103. The Supreme Court issued the writ, returnable on 5 October 1976. A judgment

delivered on 20 January 1977 by Cilungwe C.J., with whom the othermembers of the Court agreed, explains what happened next ([1977] Zambia

Reports 52, in International Law Reports Vol. 79, 1989, pp.47-48):

On [5 October 1976] an affidavit was filed by the respondent

[the Attorney General] from which it appeared that SWAPO

had been approached and had declined to release the appellant.

Mr Patel on behalf of the appellant pointed out that no

approach had been made to the Government of the Republic of

Tanzania and applied for the return day to be extended to

enable this to be done; the learned Attorney-General said thatthe respondents stand was that the decision of this Court was

not in the best interests of the liberation struggle and that the

Government of the Republic of Zambia could not go to the

Republic of Tanzania with a request to do something with

which it did not agree. This Court granted the application to

extend the return day, but stressed that we had, of course, no

authority to make an order against the government of another

country and that the order could be, and was, no more than

that the respondent request the Government of Tanzania to

return the appellant to the Republic of Zambia.

On 14 October, the extended return day, a further affidavit

was filed by the respondent, deposed to by the Permanent

Secretary in the Ministry of Foreign Affairs, which is largely a

political argument. The deponent said that discussions had

been held with the High Commissioner for the Republic of

Tanzania to throw out feelers as to what would be the

reaction of the Government of the Republic of Tanzania to a

request that the Republic of Zambia would receive a negative

answer. The deponent went on to say that whether the

Republic of Zambia should make such a request involved high


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State policies which were extremely sensitive and were not

matters falling within the legal ambit. []

It is most unfortunate that politics have been introduced into

this matter. The duty of the respondent was clear and simple.

This Court ordered that a writ of habeas corpus issue, andsubsequently ordered that a request be made to the

Government of the Republic of Tanzania to return the

appellant. It is the duty of the respondent to comply with that

order. No litigant, whether the Government or a private

litigant, can be heard to say to this Court and what is more,

in the very proceedings in which the decision was made that

the decision is not in the best interests of the liberation

struggle and that he cannot do something with which he

disagrees, or that high State policies are involved which are

extremely sensitive and are not matters falling within the legal

ambit. []

For these reasons, in my view this Court cannot accept the

return of 14 October. I would propose that the respondent be

afforded a final opportunity to make a proper return to the

writ, and that the return day be extended for this purpose.

104. A further judgment of Silungwe C.J. on 5 January 1978 records that:

It is clear from the last return that the appellant will not be

returned to the jurisdiction of this Court; that being so there is

nothing further that this Court could do in the habeas corpus

proceedings ([1978] Zambia Reports 71, in International Law

Reports Vol. 79, 1989, pp.48-49).

New Zealand

105. The Supreme Court of New Zealand considered the English authorities in

Taylor v Jonesand Skelton v Jones [2006] NZSC 113.7

A boy had disappearedfrom a public library in the company of a woman said to resemble Mrs Taylor,

a close friend of his mother (Mrs Skelton).

106.

The evidence suggested that the child was being concealed by his mothers

father, Mr Headley. The writ was issued to Mr Headley and five other

defendants. The key findings of fact in relation to the other five defendants

were recorded at paragraph 4:

7These cases were not cited in the courts below.


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The Judge was satisfied from the evidence that each of the

other five defendants was likely to have knowledge of the

place at which Jayden is presently held and, apart from Mrs

Taylor, might be able to exercise influence over Mr Headley

to return Jayden in terms of any order the Court might make.

107. Mrs Taylors appeal was successful, for reasons set out at paragraph 27:

[] we can see no good reason to allow the writ to be used

against a defendant who no longer has any ability to influence

the detention of the subject child. It is not intended as a device

whereby the Court may assume an inquisitorial role by

examining persons who may have information about a

detention for which those persons are no longer responsible.

The writ can properly be directed only to those who on the

evidence adduced by the applicant are, or appear to be,

controlling and managing the continuance of the detention.

[footnote: The control may be indirect or de facto, as it was in

Secretary of State for Home Affairs v OBrien.]

108. On the other hand (paragraph 30):

Mrs Skeltons position was quite different. It was realistically

accepted by her counsel, Mr Jones QC, that Heath J was

entitled to be satisfied on the evidence before him that she

might be able to exercise influence over Mr Headley in

relation to the detention of Jayden. In other words, putting thematter in the way in which the question of sufficiency of proof

for the issue of the writ is best articulated, it appeared

probable on the facts before the Court that Mrs Skelton had

the requisite control over Jayden, through the agency of her

father, to make her amenable to the writ.

109. Mrs Skeltons appeal, ultimately unsuccessful, was on grounds of abuse of

process and procedural deficiencies. The abuse of process argument was that

the proceeding was an attempt to generate adverse publicity in order to

encourage Mr Headley out of hiding. The Supreme Court observed at

paragraph 33:

It would, in our view, be unrealistic not to acknowledge that

the respondent appears to be using the writ of habeas corpus to

put pressure on Mrs Skelton to procure Jaydens release from

detention. But, as was made clear inBarnardo, the exertion of

pressure on the defendant by the use of the writ is not

improper when it appears probable that the defendant has

unlawful custody or control of a child.


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110. Habeas corpus is also a valuable means of dealing with international child

abduction cases where a child has been sent to a country that is not a signatory

to international child abduction conventions but where the parent with control

over the child remains in the jurisdiction. The New Zealand courts have

applied Barnardo and OBrien to such cases and issued the writ so as to

protect the best interests of the child. Clark & McCoy in The Most

Fundamental Legal Right: Habeas Corpus in the Commonwealth summarise

the New Zealand case law and note at p. 173:

Parents have always sought to evade the custody orders of a

court by illegally removing children outside the jurisdiction,

especially since the rise of modern travel but the courts in

countries where the writ of habeas corpus is available havedeveloped mechanisms to thwart such practices.

111. For example, in Re Child Abduction (Habeas Corpus)(1998, unreported) (as

summarised in Clark & McCoy at p. 180):

the young school child had been removed by her maternal

grandmother at the instruction of her mother to Samoa.

Habeas corpus proceedings were instituted in New Zealand

directed against the wife who remained in New Zealand

throughout. Samoa is not a signatory state to the UnitedNations Convention on the Civil Aspects of International

Child Abduction. Smellie J robustly ordered the writ to run as

the evidence demonstrated that the mother was still in

effective control and custody of the child The mother

caused the child to fly back from Samoa to New Zealand by

the return date under the writ.

Federal Court of Australia

112. InHicks v Attorney General [2007] FCA 299 an Australian national detained

in Guantanamo Bay detainee sought habeas corpus in the Federal Court of

Australia.

113. The Attorney General sought summary judgment arguing that, unlike in

OBrien, there was no agreement between the United States and Australia, and

nor had Australia ever stated that it had control over Mr Hicks. The case, so

the Attorney General argued, was closer to Sankohthan OBrien.


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114. Tamberlin J rejected the Attorney Generals application. He stated at

paragraphs 49-50:

[49] The respondents submit that persuasion or the power to

make a request falls far short of, and can never amount to,control. However, unlike Sankoh, in the present case the

location of Mr Hicks is known, and given that the pleading

alleges that there is not only control but also that a request by

the Australian government would be granted, the case for Mr

Hicks is that the respondents retain more than an ability to

simply persuade the United States government. Mr Hicks

submits that he should be permitted to lead and test evidence

regarding control to determine whether there is the requisite

degree of co-operation and control on the part of the

Australian government in relation to his internment by the

United States authorities. It should be noted that Mr Hicksdoes not contend that the Court should dictate to the executive

what should be done in the course of executing foreign policy.

[50] Notwithstanding the force of the submissions made by

the respondents, I am not persuaded, having regard to the

authorities and the line of reasoning, that there is no

reasonable prospect of success on this issue.

115. Before the substantive application could be heard, Mr Hicks was released.

US Authorities

116. In recent years, there has been extensive US litigation on the

constitutionality of US detention of prisoners in overseas sites where it has

been claimed at various times by both the US executive branch and the US

Congress through the passage of jurisdiction-stripping legislation the writ of

habeas corpus does not run. The availability of habeas corpus for foreign

national prisoners held overseas by the US is now substantially narrower than

in other common law jurisdictions:

a) The high water mark of post-2001 US habeas was Boumediene v

Bush, 553 U.S. 723 (2008). By 5-4 the Court held that the Suspension Clause

of the US Constitution (the Privilege of the Writ of Habeas Corpus shall not

be suspended, unless when in the Cases of Rebellion or Invasion the public

safety may require it) protected detainees at Guantanamo Bay. The Court


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held that a Congressional statute stripping federal courts of jurisdiction to hear

habeas petitions of prisoners at Guantanamo Bay was an unconstitutional

suspension of the writ. In so deciding, the Court held that consideration had to

be given to:

i)

The citizenship and status of the detainees and the adequacy of the

process used to determine the status of detainees. (The rights of US citizens

are considerably stronger than those of non-citizens under the US

Constitution.)

ii) The nature of the sites where apprehension and then detention took

place.

iii) The practical obstacles inherent in resolving the detainees

entitlement to the writ.

These matters, in the courts view, determined the extent to which the

Suspension Clause had extraterritorial application to non-citizens in

Guantanamo. In contrast, the citizenship of a person is irrelevant to English

common law habeasprinciples.

b) In Maqaleh v Gates (D.C. Cir. May 21, 2010), the DC Court of

Appeals held that habeasdid not apply to detainees at Bagram. The decisive

point was that Bagram, indeed the entire nation of Afghanistan, remains a

theater of war (p. 22). The Court relied on a Second World War case,

Johnson v. Eisentrager, 339 U.S. 763 (1950): such trials would hamper the

war effort and bring aid and comfort to the enemy (p. 24). It was held that the

Suspension Clause of the US Constitution had no extraterritorial application to

the detention of non-citizens in a theatre of war. The current position is

therefore that the US Courts will not exercise the habeasjurisdiction over non-

US detainees held by the US government in Bagram.

c) However, in certain cases, the Court of Appeals accepted that the

result might be different:

We do not ignore the arguments of the detainees that the United Stateschose the place of detention and might be able to evade judicial review of


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Executive detention decisions by transferring detainees into active conflict

zones, thereby granting the Executive the power to switch the Constitution on

or off at will. Brief of Appellees at 34 (quotation marks and citation omitted).

However, that is not what happened here. Indeed, without dismissing the

legitimacy or sincerity of appellees concerns, we doubt that this fact goes to

either the second or third of the Supreme Courts enumerated factors. We needmake no determination on the importance of this possibility, given that it

remains only a possibility; its resolution can await a case in which the claim is

a real

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