Live Blog: Secretary of State for Foreign & Commonwealth Affairs & Anor v Rahmatullah and another case
03 Tuesday Jul 2012
End of Proceedings: This case deals with important questions on writs of habeas corpus and the implications for foreign relations in requesting the release of a suspect by a foreign sovereign state. We expect the judgment in the next Court year and will provide a Case Comment soon after.
16:08: James Eadie QC’s submissions concluded. Judgment reserved.
16:06: Re the cross-appeal – the Judges in the Court below were correct to conclude that the cross-appeal had been properly dealt with by the letter the Government sent. The letter followed a long period of contact between the two Governments – there was no doubt what was sought by the USA.
16:01: Issue of Habeas writ – the other side argue that any doubt (or any ability to persuade) was sufficient for the issue of the writ – this is extraordinarily broad and cannot be right.
15:55: Submitted that case of Shipanga does not assist the other side’s argument. In that case there had been a clear direct order of the Court which the Government had to follow - very different to this case.
15:51: James Eadie QC says Court should be assisted by judgment of those who are expert in predicting how states will react in this situation.
15.49: On Geneva Convention and issue of control – judgment has to be made of effect on person who actually has custody (the USA). Question is not “are the US in breach”, the question is “how are the USA going to react if UK says breach?”.
15.47: Eadie invites the Justices to look at Goldsmith III article. Says it is important to appreciate that the article also discusses the position of Al-Qaeda operatives in Iraq, and their presence in occupied territory. SoS describes that these individuals were suspected of being part of a Al-Qaeda linked organisation which is the same as US’ view. Submits that is the true importance of the article.
15.40: Submits that both letters from the US (that is from 2011 and 2012), are similar in content. Nothing new in 2012 letter regarding issue of control. If the Court of Appeal are saying the second response are showing no de facto control, this is applicable to the 2011 response. Justice Dyson queries whether the second letter was confirming that request had been refused. Eadie says content of the letter – what the US says about its control – stronger in 2011 letter than the 2012 one.
15.37: The evidence of Mr Parmenter shows that 2008 MOU was intended to supersede 2003 MOU. Lieven criticised the government for entering into the 2008 MOU and claims that by doing so it was the government “washing its hands” of the 2003 MOU. It does, if anything, support the fact that the 2008 MOU is the relevant one. Eadie does not accept the criticism, but submits even if valid, it supports the arguments made by the SoS.
15.33: Eadie says that of course the UK government takes MOUs seriously. But it is an issue of fact and judgment whether they can be relied upon in any particular circumstances. Here, he says he has made a series of points about particular MOUs and whether they continue to apply, and submits that difficult to rely upon a MOU from 2003 in circumstances taking place in 2011.
15.30: It is clear (and accepted) that there are ongoing opportunities for people such as Mr R to continue to raise issues with the Court. Have an example of another individual in the same position as Mr R who has issued HC proceedings in the District of Columbia Courts. This individual acknowledges that he is under the control of the US.
15.27: Opining on legality of US actions is very difficult. Lord Phillips queries whether, on the facts, there is sufficient control. James Eadie says core problem is that you wouldn’t actually be arguing about legality of ongoing detention. Issue is whether there is a current unlawful detention. If so, a HC can be issued.
15.22: James Eadie QC is up. Submits that the question is whether the current detention is legal. Purpose of HC is not to investigate past illegality. Must have focus – is detention legal? Not concerned here with whether or not original transfer is lawful. Is detention legal – that is the question.
15.19: Justice asks about the Indian cases referred to in submissions. Do they add anything? Thomas de la Mare QC says he doesn’t think they take matters greatly forward but are consistent with arguments being run.
15.17: Rights to liberty are a judicial matter. Very difficult to think of anything more politically embarrassing where courts have to consider political subjects, but has to be done. Problem that SoS ultimately faces is that he has to engage with imputed illegality of Articles 45 and 49 and whether steps taken with were lawful.
15.13: Thomas de la Mare QC submits that cannot make a considered view whether must make a request under Article 45 of the Geneva Convention – not open to SoS to evade that question.
Domestic crimes provide that an answer must be provided. Extraordinary matters here. Universal character re nationality and territorial scope. Thomas de la Mare QC emphasises actions in June 2004 are crucial.
15.11: Emphasises the relevance of the MOU in this case as compared with the other cases referred to by Ms Lieven. In relation to control, no material difference as regards the position of the state.
15.07: Thomas de la Mare QC takes the Court through the cases of Barnado and Mallin v Clark. Cases on which James Eadie QC relied previously are distinguishable from the cases at hand. As regards the third test below, says the SoS can’t have things “both ways”.
15.01: Thomas de la Mare QC is now up. He is outlining three main issues:
- The general approach to the control test
- What scope of control test is for people abroad
- Whether the fact of the identity of the retainer, particularly if it is a foreign state, affects the question of control.
15.00: Reemphasises that the Court should have submitted Mr Drew’s evidence to more scrutiny in light of Mr Lietzau’s letter.
14.58: With regard to the second ground, suggesting that forbidden area has no relevance to the consideration of Mr Drew’s evidence, as outlined in previous submissions.
14.50: Now discussing the differences between ‘diplomatic speech’ and plain English. The issue is whether the letter from Mr Lietzau constituted a ‘diplomatic refusal’, even if when read literally it appears to invite further discussion as to Mr Rahmatullah’s release.
14.42: Lieven suggests that the Court of Appeal simply didn’t subject the contents of the statement from the Mr Drew to enough scrutiny or the letter from Mr Lietzau. Mr Lietzau’s letter did not constitute a refusal to transfer Mr Rahmatullah, as Mr Drew states that it did. It was an invitation for further discussions. It also was not a statement that the UK government did not have control over Rahmatullah. Suggests that the Court of Appeal should not have considered the writ discharged as the issue of control was still unclear.
14.33: Now moving on to cross appeal. Submits that the Court of Appeal’s second judgment was wrong in that:
- In accepting the evidence of the government (specifically the statement of Mr Drew, the dircetor of national security for the FCO) as to the meaning of the letter from the US (written by Mr Lietzau, the Deputy Assistant Secretary of State for Defence), the Court failed to have proper regard to the ambiguities in the letter and the inadequacies in the Mr Drew’s evidence.
- The Court erred in considering that taking issue with the governmental interpretation of the US letter would be to enter the “forbidden area” of foreign relations.
14.16: Lieven is now considering the relevance of the case law on judicial review on the ‘forbidden territory’ and foreign policy. She has eight points:
- None of the case referred to refer to HC. HC is a remedy as of right. JR is discretionary.
- The subject matter under challenge in HC and JR is fundamentally different. In Abassi etc. the decision under challenge was a discretionary decision relating to foreign policy. HC is not concerned with discretionary decisions but with the right to liberty.
- Eadie says in substance the subject matter is the same because it relates to the state’s foreign relations. Lieven argues there is no HC case where such an argument has been accepted. Force of HC is precisely that HC is of right, cannot allow discretion to enter into it, would rob writ of its power.
- Eadie said court should not have a situation where they would reach different outcome on HC or a JR when the subject matter is largely the same. Lieven argues such an argument has no logic.
- Suggests that the ‘forbidden territory’ referred to in Abassi is much more nuanced than Eadie suggests.
- Abassi does show that the UK will consider whether a foreign state is in breach of international law. Draws an analogy with asylum cases where UK courts frequently rule on foreign jurisdictions’ contravention of human rights and international law.
- Suggests Eadie’s suggetsions that Rahmatullah is in better predicament than Mr Abassi. Lieven says this is completely wrong. Rahmatullah has been in detention for eoght years, compared to Abassi who was detained for two. Suggests that Rahmatullah is in just as much of a ‘legal black hole’ as Abassi.
- What is the evidence of harm on foreign relations? Lieven argues that impact on foreign relations is irrelevant, but if it were considered relevant then suggests that there is little evidence of harm.
14.13: Lieven now touching on US cases. Suggests US cases are not that useful, as the US law habeas corpus cases have developed entirely differently, as in the US habeas corpus relies on the constitution. Lieven also questions Eadie’s suggestions that Rahmatullah may have a remedy in the US. Lieven argue s that is not the case.
14.00: And we are back.
This morning’s proceedings have seen Nathalie Lieven QC put her submissions to the Supreme Court on behalf of Mr Rahmatullah. In particular, the following issues have been discussed:
- the relationship between illegality and habeas corpus;
- the importance of the MOU entered into between the UK and USA for the purposes of establishing who has ‘control’ of the detainee, and the role of the Geneva Convention when interpreting the parties’ obligations under the MOU; and
- detailed submissions on a range of domestic and foreign case law on habeas corpus and its application in circumstances where there is dispute over who has control of the detainee.
Submissions are due to recommence at 2pm, when our live blog will continue.
13.05: LUNCH Lieven seeks to draw a number of conclusions from these authorities in support of her submissions. She faces questioning from both Lord Carnwath and Lord Phillips before lunch is declared and the morning’s submissions are brought to an end.
12.55: Lieven is now making submissions with regard to cases relied upon by the Appellant. Referring to the decision of the Privy Council in Zabrovsky v General Officer Commanding Palestine & another , in which the Court found there to be no control, Lieven submits that this decision has since been held to be incorrect. Similarly, Lieven also submits that the decision in ex parte Mwenya  as relied upon by the Appellant provides no support for the Appellant’s case.
12.45: Continuing her consideration of decisions of foreign courts on similar issues, Lieven moves onto the decision of the Supreme Court of New Zealand in Taylor v Jones and Skelton v Jones  NZSC 113.7, a case involving the disappearance of a boy from a public library and his subsequent unlawful detention. Several of the defendants were argued to have control over the boy’s grandfather, who was suspected of holding the child. A writ of habeas corpus was granted over certain of the defendants deemed to have ‘the requisite control‘ over the detainer. Lieven submits that this decision demonstrates the willingness of other courts to apply a writ of habeas corpus flexibly.
12.33: Lieven moves on to the case of Shipanga, which was a decision of the Supreme Court of Zambia, concerning a Namibian held in Zambia by the Swapo Party then taken to Tanzania when the decision was pending. The question was whether, since the appellant was no longer in Zambia, the writ could issue. The court considered UK case law, including O’Brien and Barnardo v Ford. The Court said where there is doubt as to whether the Respondent has reliquished control the writ should issue. Political sensitivy was rejected in “the clearest possible terms”.
12.27: After hearing Lieven summarise key issues from the judgment in O’Brien, Lord Phillips queries whether it is enough that the alleged illegality (of the US government) is in the summary arrest, transport and placing into custody or if the illegality has to be in the initial transfer. Would the latter be sufficient to procure the return of the ubsject? Lieven argues that if there was a lawful transfer but a subsequent unlawful detention, and the original detainer has right to recover, then the court should require that the subject be recovered. It is then for the original retainer to argue whether the retention was lawful.
12.17: Lieven moves on to consider the case of O’Brien, decided at the time of the Irish civil war. Lieven makes two initial points:
(1) that the government has tried to suggest that O’Brien is a case about a particular relationship between the UK and the Irish free state and has narrow application. Lieven contends that this is not the case.
(2) that the government tries to take a limited approach to control and suggests that political sensitivites between the UK and US should be taken to account. Lieven submits that there is nothing in O’Brien about taking political sensitivies in account and indeed the judgment in that case stated that the writ should be upheld even in challenging situations. O’Brien concerned the most sensitive relationship between the Irish state and the UK; a far more sensitive that the relationship between the US the the UK. Lord Dyson notes that the Master of the Rolls in the Court of Appeal in this case said that political sensitivity point had not been argued and therefore you cannot attach too much weight to it.
12.07: Lieven considers the case of Barnardo v Ford and argues that where the court entertains a doubt it can issue the writ to test control of the retainer. Lord Phillips queries what the doubt would be about and puts to Lieven that the only doubt suggested is whether the US will satisfy its obligations. Lord Phillips suggests that the onus would therefore be on the crown to satisfy the court that this doubt exists.
11.55: Lieven now moves on to consider whether the Court of Appeal was entitled to reach the conclusion that the US could be expected to abide by its undertakings. She points to submissions made on behalf of the Secretary of State in earlier proceedings where it was suggested that to attack a memorandum of understanding (in that case, given by Jordan) because it was not legally enforceable betrayed a lack of practical understanding as to the polital and diplomatic force of such arrangements. She goes on to say that the government’s position in this case, where it seeks to rely on the unenforceability of the memorandum of understanding, is inconsistent with that earlier submission.
11.40: Lieven argues that both the US and UK governments have previously opined that persons in Mr Rahmatullah’s position clearly are protected persons. She has brought to the attention of the Justices the armed conflict manual used by the UK MoD. On page 274 para 11.1 she argues makes it clear that the inhabitants of occupied territories are protected persons. Neutral persons within the occupied territory are also entitled to treatment as protected persons. This is what Mr Rahmatullah is.
11.35: Now we are turning to Article 4 of Geneva III and whether Mr Rahmatullah was a ‘protected person’ or not, which was disputed yesterday by the government.
11.30: Lieven is now drawing the courts attention Article 147 of the Geneva Convention, which outlines ‘Grave Breaches’ of the Convention: “Unlawful deportation or transfer or unlawful confinement of a protected person, wilfully denying a person of the regular opportunity to a fair trial”. The Geneva Convention Act gives effect to the Convention in domestic law and makes violations of it a criminal offence. Again, this all goes to why the UK implemented the MOU, it was not a discretionary measure; it was drawn up to ensure that the UK did not find itself in breach of its convention obligations.
11.22: Lieven has now moved on to the 2008 MOU. She states that it was not the intention of that MOU to supersede the 2003 MOU. Even if it did, the same protection was provided by the 2008 MOU as that provided under the 2003 MOU. The Secretary of State was aware of the plight of the two detainees at that point and did not intend to ‘wash his hands’ of them through the 2008 convention.
Lieven has now moved on Geneva Conventions and Article 45 ‘Protected persons shall not be transferred to a power not party to the convention.’ Lieven argues that is the whole reason why the MOUs were signed, as the UK realised that otherwise they would be in breach of the convention, given the US reluctance to accept the applicability of the conventions in certain circumstances. Also important is Article 12 Geneva III.
‘Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.
Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.’
This makes it clear, she argues, that this is not a polite diplomatic request as it was in Abassi. It is a request that must be complied with. It is an obligation on the UK and the US. The word ‘request’ is diplomatic language. In essence it is an obligation.
11.10: Lieven is emphasising that it is very clear that the MOU applied to Mr Rahmatullah’s. She replies to Eadie’s argument that the language of the memorandum is phrased only as a request, there is no obligation on the US to comply. She argues that this is a misunderstanding of the langue, as the phrase ‘will be returned’ makes it clear that the US signed the MOU and agreed that it would comply. She also rebuts the submissions that the MOU came to an end in some way and so does not apply to Rahmatullah. It may have come to an end with the end to the Iraq conflict, or when Rahmatullah was transferred out of Iraq. She argues that given that the MOU was signed to ensure compliance with the Geneva convention it is nonsensical to suggest that it does not apply once the conflict is over and also that the MOU would cease to protect an individual if that individual was transferred out a country in defiance of that MOU.
11.00: Lord Phillips wants to know what would happen if the US said they would release him, but only if they took him back to the UK and put him under a control order, would the UK be under a duty to do so? Leiven replies that she does not want to delve into UK immigration and control orders. She argues the correct remedy for the writ is that he be released to the ambassador.
10.50: Lieven is arguing that the MOU was drafted in such a way to avoid ambiguity and uncertainty. The MOU was drafted in order to ensure that ‘the right’ of the UK government to have prisoners of war returned upon the request, as there were concerns over US compliance with the Geneva Conventions. She suggests that the MOU was not undertaken lightly and was drafted to ensure that the UK not only complied with its international obligations but also did not commit any wrongdoing under the Geneva Conventions.
10.44: Nathalie Lieven QC is now making submissions. She is going to go through the facts relating to ‘control’, the various Geneva conventions and MOU’s between the US and the UK, before looking at the case law raised by the government. She starts by looking at Article 4 of the first MOU between the UK and US, applicable in 2003. This states that “Any prisoner of war, civilian internees and civilaian detainees transferred by a detaining power (the UK) will be returned to the accepting power (the US) to the detaining power upon request by the detaining power”. She argues that according to Article 4 the only possible answer to a request from the UK to return a detainee is a positive one. It is an excpetionally clear Article. There are no conditions attached.
10.40:Lord Phillips is asking about illegality and its relationship to habeas corpus and unlawfulness. He suggests that the government cannot skirt the question of illegality just by saying that it falls within a ‘forbidden area’ i.e. that of foreign relations. There is also the question of whether if the UK has an obligation under international law to ground a habeas corpus duty in domestic public law. Habeas is a remedy for a legal wrong. Unless you have a legal wrong then you can’t have the remedy. This is where the relationship between domestic and international law becomes important.
10.30: Lord Phillips is making a cricket reference.
10.25: Reprieve, which has been campaigning for Yunus, has hepfully put up the arguments of both sides on its website. You can read the government’s argument here, and Mr Rahmatullah’s here. Counsel for the government are James Eadie QC, Ben Watson and Dan Sarooshi. Counsel for Mr Rahmatullah are Nathalie Lieven QC, Ben Jaffey and Tristan Jones.
Inspired by the success of the SCOTUS blog in live blogging the US Supreme Court’s decision on the Affordable Care Act, we at the UKSC Blog thought that we would run our own live blog experiment, live blogging today’s proceedings in Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v Yunus Rahmatullah (Respondent) and Secretary of State for Foreign and Commonwealth Affairs and another (Respondents) v Yunus Rahmatullah (Appellant). It is a fascinating case; Yunus Rahmatullah, a Pakistan national, was captured by UK forces in a US controlled area of Iraq in February 2004 and transferred to the custody of US forces. He was then transferred to Afghanistan and has been held at Bagram Airbase without trial since June 2004. At that time a Memorandum of Understanding (MOU) was effective between the UK and the US which provided for the return of prisoners of war on request. Lawyers for Rahmatullah applied for a writ of habeas corpus on the grounds that his detention was unlawful and that the British government enjoyed sufficient (or arguably sufficient) control over his to bring about his release in accordance with the MOU. The application was granted by the Court of Appeal on appeal and a writ was issued. In the event, the writ failed to secure the release of Rahmatullah. In response to the writ the UK government wrote a formal letter of request to the United States requesting the release of Mr Rahmatullah. The request was refused. The letter was deemed to be an adequate discharge of government’s habeas corpus obligations. The Court of Appeal ruled that, while it heavily criticised the government’s behaviour:
“The melancholy truth is that the events since we handed down judgment appear to establish that when the UK defence forces handed over [Rahmatullah] to the US authorities in questionable circumstances in 2004 they most unfortunately appear to have sold the pass with regard to their ability to protect him in the future.”
There are two issues before the Supreme Court. The first is whether a sufficient return to the writ of habeas corpus was made by the government, entitling the Court of Appeal to conclude that the UK government did not have de facto control of the appellant. The government is cross appealing, arguing that the Court of Appeal erred in finding that a writ of habeas corpus can be issued at all where a respondent has sufficiently arguable control of an applicant, and failed to have proper regard to the implications for foreign relations in requiring a request for release to be made to a foreign sovereign state.
Visit us throughout the day for updates on the proceedings.