New Judgment & Comment: Secretary of State for Foreign and Commonwealth Affairs & Anor v Rahmatullah  UKSC 48 [updated]
31 Wednesday Oct 2012
On appeal from:  EWCA Civ 1540.
Rahmatullah was captured by UK forces in a US controlled area of Iraq and transferred to the custody of US forces. He was then transferred to Afghanistan and has since been held at Bagram Airbase without trial. At that time a Memorandum of Understanding was effective between the UK and the US, which provided for the return of prisoners of war upon request.
The appellant applied for a writ of habeas corpus on the grounds that his detention was unlawful, and that the British government enjoyed arguably sufficient control over him 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, and the UK government wrote a formal letter of request to the US requesting the release of the appellant. The request was refused, and the Court of Appeal found that this letter was a sufficient response to the writ. The Secretary of State appealed the decision to issue the writ and Rahmatullah cross-appealed the decision that the response was sufficient.
The Supreme Court unanimously dismissed the Secretary of State’s appeal and dismissed Rahmatullah’s cross appeal by a majority of 5-2 (Lady Hale and Lord Carnwath dissenting).
In responding to the Secretary of State’s appeal it was held that the UK did not need to have actual custody over Rahmatullah to exercise control over his release, as habeas corpus was a flexible remedy – it was sufficient that there was a reasonable prospect of the UK obtaining his release to issue the writ. The UK was under a duty to ensure that Rahmatullah was not being held in breach of the Geneva Convention or to request his return. The issue of the writ was not an ‘instruction’ to the Government to act in any particular way or to engage in diplomacy. It merely reflected the fact that there were sufficient grounds for believing that the UK Government could obtain control over the custody of Rahmatullah. What was required of them was to show whether or not control existed in fact. On the cross appeal it was held that while the letter sent by the US in response to the writ did not explicitly refer to the MOU, it did not suggest that it had not been considered. It was clear from their response that the US considered they were holding Rahmatullah lawfully.
In dissenting, Lady Hale and Lord Carnwath held that the UK’s request did not make it clear that under the MOU, Clause 4 the UK had an unqualified right to require Rahmatullah’s return, and that the US response also failed to deal with that particular issue.
See also the UKSC Blog ‘live blog’ of the hearing in this case.
Case Comment – A full analysis of the case will be going up later this week. The comment below offers some initial thoughts on the case and a fuller explanation of the judgment.
The Supreme Court has, by a majority, dismissed both the appeal by the Secretary of State and the cross appeal in Secretary of State for Foreign and Commonwealth Affairs & Anor v Rahmatullah  UKSC 48. Judgment was eagerly awaited in the case, not only because of its potential to help effect the release of Yunus Rahmatullah himself, but also because the case bought up a number of interesting issues including the scope of the writ of habeas corpus and the extent to which consideration of government foreign policy is ‘forbidden territory’ for the courts.
The Court of Appeal judgment handed down by Lord Neuberger in this case was striking in its implicit criticisms of the UK authorities, who, Neuberger stated, appeared to have ‘sold the pass’ when they handed Mr Rahmatullah over to the US military in ‘questionable circumstances’. The UKSC judgment is more moderate in its language, but the lead judgment by Lord Kerr contains a robust rebuttal of the majority of the Secretary of State’s arguments. Of particular interest is the Court’s response to the government’s ‘forbidden territory’ argument and assertions that they lacked requisite control over Mr Rahmatullah via the 2003 Memorandum of Understanding (MoU) between the US and UK.
The Court accepted that the MoU was not legally binding, and a largely political arrangement:
“But its significance in legal terms should not be underestimated. That significance does not depend on whether the agreement that it embodies was legally binding as between the parties to it . . . the 2003 MoU was needed by the UK in order to meet its legal obligations under article 12 of GC3 and article 45 of GC4 . . . Put plainly, the UK needed to have in place an agreement which it could point to as showing that it had effectively ensured that the Geneva Conventions would be complied with in relation to those prisoners that it had handed over to the US. The 2003 MoU was the means of meeting those obligations. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US.” 
Therefore, while Memoranda and Diplomatic notes are not legally binding, that does not mean that they are not legally important. Therefore, the government could not seek to evade its duties by downplaying the significance of the MoU, as such documents have been traditionally offered to courts as legitimate means by which the assurances that they contain will be honoured. In accepting the validity of such documents courts have accepted their value as “solemn undertakings formally committed to by responsible Governments”. In such circumstances, Lord Kerr stated reprovingly:
“It is therefore somewhat surprising that in the present case Mr Parmenter asserted that it would have been futile to request the US government to return Mr Rahmatullah. As the Master of the Rolls pointed out in para 39 of his judgment, this bald assertion was unsupported by any factual analysis. No evidence was proffered to sustain it.” 
The main question at issue was whether the UK government had requisite control over Mr Rahmatullah to request his return, but the Court did briefly consider the question of whether he was unlawfully detained. The Court found that he clearly was on the basis that his continued detention was a violation of Articles 45 and 49 of the Geneva Convention 4. The Court rejected arguments that Mr Rahmatullah was not a ‘protected person’ under the Geneva Convention and criticised the conduct of the UK authorities in failing to adhere to the convention handing Mr Rahmatullah over to US authorities:
“Not only should the transfer of the two persons have been questioned at the time that they were removed, it should have been the subject of representation by the UK at the time that the authorities here became aware of it and subsequently. If the UK government appreciated that the transfer was in apparent breach of article 49 of GC4 (and it has not been suggested otherwise) and if, as it should have done, it became aware that Mr Rahmatullah continued to be held in breach of articles 132 and 133, it was obliged by virtue of article 45 to take effective measures to correct the breaches or to ask for Mr Rahmatullah’s return.” 
The Court also gave short shrift to the argument that by issuing a writ if Habeas Corpus, the Court was venturing on to the ‘forbidden territory’ of foreign policy:
“Mr Eadie argued that these observations illustrated the impropriety of courts giving directions to ministers as to how they should conduct affairs of state. It was inappropriate, he said, for the Secretaries of State in the present case to be, in effect, instructed to ask the US authorities to return Mr Rahmatullah . . . The writ in this case had a singular effect, Mr Eadie claimed, of requiring the Secretaries of State to engage at a diplomatic level with the custodian state, the US . . . I do not accept this argument. In the first place, the Court of Appeal’s decision does not amount to an “instruction” to the Government to demand Mr Rahmatullah’s return. Its judgment merely reflects the court’s conclusion that there were sufficient grounds for believing that the UK Government had the means of obtaining control over the custody of Mr Rahmatullah” [59-60]
This is an illuminating statement in light of the debate over whether judges sometimes over extend themselves in judgments which are seen to infringe on government policy. Lord Kerr’s statement suggests a solution to this criticism, in that it is perfectly legitimate for a court to make a finding of the existence on a legal obligation, without dictating the manner in which the legal obligation should be enforced. Such a finding is within a court’s jurisdiction and parties found to have such duty cannot evade it by claiming that the court is forcing them to act in a particular manner.
The majority of the judgment dealt with the arguments put forward by the government, the cross appeal was examined in the last nine paragraphs of the lead judgment. Counsel for Mr Rahmatullah had argued that the letter received from the US defense department in response to the UK request concerning Mr Rahmatullah did not constitute a sufficient return to the writ of habeas corpus. he argued that the letter could not be seen as a rejection of the UK’s request for Mr Rahmat in that it was not unequivocal in its rejection there remained a doubt as to whether that release could be secured. The Court did not find this to be the case, suggesting that the lack of explicit rejection of the UK’s request was due to the inherent vagaries of diplomatic correspondence, “A diplomatic silence on that question does not necessarily indicate a lack of interest in the subject. It is at least as consistent with a profound disagreement with the view that the UK could assert entitlement to control but that this, in the interests of diplomacy, was better left unexpressed.”
The concurring judgments of the majority from Lord Phillips and Lord Reed agreed with the majority of Lord Kerr’s judgment, but suggested that there remained some unexplored issues with relation to the scope of habeas corpus. Lord Phillips stated that that there remained an unexplored issue in terms of scope of the writ, in relation to the fact that the UK authorities initial detention of Mr Rahmatullah has been lawful and the fact that, as Lord Reed stated “there was no suggestion that the Secretaries of State had committed any civil wrong under English law in respect of the detention of Mr Rahmatullah”.
Lord Carnworth and Lady Hale’s dissent was short, but in judicial terms, impassioned. They dismissed Lord Phillips’ ‘unexplored’ issue, stating that:
“The strength of habeas corpus is its simplicity. There may be interesting theoretical arguments, turning on the different categories of illegality that may be in play: under international, criminal, or civil law. But the applicant is not concerned with such nice distinctions. For his purposes, detention once established is presumed to be illegal until the contrary is shown by the detainer or the person allegedly in control.” 
They dismissed the appeal and allowed the cross appeal, stating that given the extreme circumstances of Mr Rahmatullah and the grave concern surrounding his capture, transfer and subsequent disappearance from 2004 to 2010, and the fact that he remains in custody despite having been deemed suitable for release. Lady Hale and Lord Carnwarth clearly had no patience with the niceties of diplomatic correspondence and did not deem the US letter in reply to the UK authorities letter a suitable return for the writ:
“The answer accepted by the Court of Appeal is that, in the light of the Secretaries of State’s evidence, and in the language of diplomacy, the letter was to be read as an unequivocal refusal, and the court should not go behind that . . . We cannot accept this reasoning. We do not understand either why the US government should have had any diplomatic problem in expressing its position clearly, or still less why the court should acquiesce in that position. The US must have a view on the whether the UK retains an interest in the matter. Either it accepts that the UK retains an interest as detaining authority, and under the 2003 MoU, or it does not. One way or the other it should address the issue. Where liberty is at stake, it is not the court’s job to speculate as to the political sensitivities which may be in play.” 
It is to be expected that both parties will be disappointed with the decision, the UK authorities have been subject to another round of severe criticism form the courts with regard to their conduct in Afghanistan and involvement in the unlawful transfer of prisoners, something which they may have hoped to have left behind after the furore surrounding the Binyam Mohamed case. Yunus Rahmatullah remains incarcerated; it is little comfort to be the subject of fascinating example of the use of the habeas corpus writ if the writ does not effect release. But the judgment does offer clarification of both the writ of habeas corpus, the limitation and meaning of ‘forbidden territory’ with regard to the courts, and the applicability of the Geneva Conventions. It also raises some issues regarding habeas corpus that may be explored at a later date. Lady Hale and Lord Carnwarth’s dissent also offers some contrasting views as to the appropriate role of judges when seeking to address questions of liberty and how much regard should be had for ‘political sensitivity’ in such cases. These comments will no doubt be the subject of comment from both sides of the debate on the merits of ‘activist judges’. The judgment offers much in terms of legal discussion and consideration, but an unsatisfactory outcome for both sides.