ON APPEAL FROM THE ADMINISTRATIVE COURT
HALLETT LJ & COLLINS J
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD JONES
LORD JUSTICE RYDER
| THE QUEEN (HAIDAR ALI HUSSEIN)
|- and -
|THE SECRETARY OF STATE FOR DEFENCE
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James Eadie QC, Sam Wordsworth QC and Amy Sander (instructed by the Treasury Solicitor) for the Respondent
Hearing dates : 10, 11, 12 June 2014
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LORD JUSTICE LLOYD JONES :
"There can be no doubt that the practices carried out under the guidelines then in place were unacceptable. The harsh technique included the following elements which could be deployed as the questioner considered necessary. The shouting could be as loud as possible. There could be what was described as uncontrolled fury, shouting with cold menace and then developing, the questioner's voice and actions showing psychotic tendencies, and there could be personal abuse. Other techniques were described as cynical derision and malicious humiliation, involving personal attacks on the detainee's physical and mental attitudes and capabilities. He could be taunted and goaded as an attack on his pride and ego and to make him feel insecure. Finally, he could be confused by high speed questioning, interrupting his answers, perhaps misquoting his reply." (para 7)
"The teaching of the "harsh" permitted insults not just of the performance of the captured prisoner but personal and abusive insults including racist and homophobic language. "Harsh" was designed to show anger on the part of the questioner. It ran the risk of being a form of intimidation to coerce answers from prisoners. It involved forms of threats which, while in some senses indirect, were designed to instil in prisoners a fear of what might happen to them, including physically. Insufficient thought was given to whether the harsh approach was consistent with the Geneva Convention." (para. 6.346) [1/588]
"Within clear and stringent parameters the MoD considers that a requirement exists for a questioner to raise his voice or even to shout at a subject if it is necessary to refocus him on the questions being asked. The strict parameters which the MoD considers are necessary properly to control the use of a refocusing approach are:
- The approach should only be used in circumstances where it is necessary and appropriate to refocus a CPERS [an acronym for captured persons] on the questions which he is being asked.
- The frequency with which allowed approach is used to refocus the subject of tactical questioning or interrogation should be limited to [REDACTED].
- The duration of the approach should be limited so that it lasts a maximum of [REDACTED].
- Speech must be coherent and translated.
- The questioner must not shout into the subject's ear.
- There must be no violence or threat of violence.
- There must be no intimidation of any kind.
- The questioning must not seek to frighten or instil fear.
- There must be no threats of any kind, whether expressed or implied.
- There must be no coercion of any kind.
- The content must not be insulting, humiliating or degrading.
- The captured person's attributes must not be ridiculed (e.g. race, religion or gender).
- The questioner must not touch the captured person."
"I have carefully considered the "strict parameters" necessary properly to control the use of the harsh approach. Obviously, they represent an improvement on the previous position. Nevertheless, I have considerable reservations as to how in practice instructors will be able to demonstrate and teach sarcasm and cynicism that does not lead and amount to insulting the prisoner, and greater reservations on the practicality on ensuring that such training is adhered to. For instance, the parameters for the "loud harsh" prohibit "intimidation" and "coercion" of any kind. This will involve the questioner/interrogator in treading a fine line between what is legitimate and what is intimidation or coercion. It will also involve some subjective judgement by the instructors of the subject of the questioning and interrogation. Much of the same can be said of the parameters for the "cynical/sarcastic harsh". In my opinion the risks of using the harsh approach, whether "loud" or "cynical/sarcastic" will remain. In the circumstances, although I recognise that the MoD, no doubt for good reason, wishes to retain elements of the harsh approach, my firm conclusion is that its use in the tactical questioning process carries too great a risk. So far as interrogation is concerned, I remain sceptical about the practicalities of eliminating the risks to which I have referred. But I recognise that the new parameters are an improvement on the previous position " [16.208, 16.209]
"However, regardless of the prevailing legal environment, MOD Strategic Detention Policy requires that UK Armed Forces will treat all CPERS humanely at all times and will, as a minimum, apply the standards articulated in Common Article 3. In international armed conflict, certain specific categories of CPERS, such as PWs or detained or interned civilians, will qualify for extra protections under Geneva Conventions III or IV and the Additional Protocols where applicable Breach of any of the standards articulated in Common Article 3 will constitute a war crime in both an international and a non-international armed conflict as a result of the Rome Statute of the International Criminal Court which was brought into UK law by the International Criminal Court Act 2001." (original emphasis)
The challenge direct policy is set out in Annex B:
2 As a matter of policy and by law, UK Armed Forces will as a minimum treat all CPERS detained during international or non-international armed conflict or other military deployments in adherence to Common Article 3. Additional protections are provided to entitled civilians by virtue of their protected status under Geneva Convention IV. Prisoners of War (PWs) are provided with additional protections under Geneva Convention III, the most pertinent article of which is Article 17:"
"No physical or mental torture, nor any other form of coercion, may be inflicted on Prisoners of War to secure from them information of any kind whatever. Prisoners of war who refuse to answer must not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind."
3 All approaches described in this Annex are compliant with this standard and are to be conducted in accordance with the prohibition against outrage upon personal dignity, humiliation, and degrading treatment. Despite being fully consistent with Geneva Convention III Art. 17, MoD policy direction is that the Challenging approach is not to be used against those personnel who qualify for PW status; thereby mitigating the risk of a Tactical Questioner or Interrogator inadvertently breaching this Geneva Convention. All other approaches are authorised for use against PWs and are to be conducted in accordance with the prohibition against threats, insults, or unpleasant or disadvantageous treatment of any kind whatsoever.
4 Significantly, not even Geneva Convention III Art. 17 prohibits attempts to extract information of military value; nor does it prevent deception or persuasion, both processes which are regarded as entirely legitimate." (original emphasis)
"The Challenging approach comprises two defined aspects, Challenge Direct and Challenge Indirect, which may be used separately or sequentially but not simultaneously. Neither approach is intended nor permitted to threaten, coerce, insult, humiliate or degrade the CPERS, or place the CPERS in fear of violence. Rather, each aims to refocus the CPERS attention on the reality of their situation and futility of intransigence. The Challenging approach is only to be used once one or more of the alternate approved approaches have proven unsuccessful. The Challenge Direct is a series of statements delivered as a verbal "short sharp shock" during the course of questioning to encourage a CPERS to engage with a questioner. The Challenge Indirect is an approach designed to refocus an arrogant CPERS onto the futility of not talking, undermine their belief in their organisation and stimulate them to challenge their own actions. As a matter of policy, the Challenging approach is not to be used against CPERS who qualify for Prisoner of War status, or any CPERS assessed as being vulnerable person.
1) Challenge Direct. The Challenge Direct approach involves a series of statements aimed to last no more than [REDACTED] seconds. The statements will comprise stern comments to the effect that the CPERS is not providing a plausible explanation, or is not acknowledging the importance of engaging with the questioner. A CPERS may have switched off or become so comfortable in a session that they are no longer taking the process seriously; the intention of the statements is to refocus the CPERS on the reality of their situation in order to promote/prompt/encourage engagement. The approach may be delivered loudly, incorporating stern comments, to rapidly bring a CPERS' attention back on to the process, but only from the front and never into the ear; it should not be so close to the CPERS face that they are put in fear of violence or threats thereof. It can also be slowly delivered in a low pitched tone in order to alert the CPERS they should be listening more attentively. The questioner may appear incredulous, frustrated, exasperated, disappointed or angry; or any combination of these. The approach exploits the inherent human attribute of wishing to please those in authority. The Challenge Direct approach is rhetorical in nature and is best employed in close co-ordination with the friendly or neutral approach where the contradiction will be most effective. The aim is to register with the CPERS the genuine seriousness of the circumstances of their situation and prompt them to defend their behaviours. The Challenging Direct approach is not an information extraction approach; instead it seeks to stimulate the CPERS into engaging with the questioner, to elicit a response from the CPERS and increase the CPERS' attention to the questioning process. The use of the Challenge Direct approach within Tactical Questioning and Interrogation is subject to the specific constraints detailed in para 6.
2) Challenge Indirect. This approach challenges the aims, politics, actions, impacts, mistakes and conduct of the enemy forces, including the CPERS themselves, to prompt the CPERS to be responsive by refocusing them onto the futility of not talking, undermine their belief in their organisation and challenge their own actions. The approach should only be employed until the desired effect has been achieved, noting that if an interpreter is used this may take longer. The questioner may use real or hypothetical examples, and should consider focusing the criticism on other enemy groups to instigate the debate before challenging the conduct and actions of the CPERS' own group and finally the CPERS themselves. The questioner may exhibit disbelief in what they are being told and seek to exploit weaknesses in a CPERS' narrative and position. They may adopt a scornful tone. Sarcasm as well as cynicism may be employed. The aim of this approach is to exploit an individual's desire to defend his ego or perceptions, particularly where the individual has held a position of authority, thereby encouraging a dialogue or debate which can be steered towards extracting intelligence. Concurrently, it seeks to persuade the CPERS to question their own allegiance to their organisation." (original emphasis)
"Additional Constraints on the use of the Challenge Direct Approach. The use of the Challenge Direct approach is to be pre-approved and observed by the local commander. Within the context of Tactical Questioning operations this will normally be the commander of the detaining patrol or sub unit; and for Interrogation operations, normally the Interrogator Controller. The approach may only be used a maximum of [REDACTED] any one session during both Tactical Questioning and Interrogation. It is to be used no more than [REDACTED] times against any one CPERS during Tactical Questioning. When used within Interrogation operations, the Challenge Direct approach would not normally be used more than [REDACTED] times against any one CPERS. In exceptional cases in Interrogation operations, which may run over many days, the Challenge Direct approach may be used more than [REDACTED] times against any one CPERS. Where this is the case, the Interrogator Controller must reapprove the use of the approach, having carefully considered the nature of the CPERS and the utility of the repeated use of the approach." (original emphasis)
The Geneva Conventions.
"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
a) violence to life and person, in particular murder of all kind, mutilation, cruel treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilized peoples.
2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."
In the same way it was accepted that Article 4, AP II also applies in a conflict which is not of an international character. It provides in relevant part:
"Article 4 Fundamental guarantees
1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.
2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:
a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment:
b) collective punishments;
c) taking of hostages;
d) acts of terrorism;
e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
f) slavery and the slave trade in all their forms;
h) threats to commit any of the foregoing acts."
"13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.
Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
Measures of reprisal against prisoners of war are prohibited.
14. Prisoners of war are entitled in all circumstances to respect for their persons and their honour.
17. Every prisoner of war, when questioned on the subjects, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.
. . . .
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."
"27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
31. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties. "
The Divisional Court.
The application for permission to appeal.
The nature of the challenge.
(1) The court erred in holding that the revised policy in relation to the coercive questioning of detained persons who do not enjoy prisoner of war status is compatible with the United Kingdom's obligations under international law.
(2) Further or alternatively, the court erred in holding that the policy and its application in Afghanistan (based on the available evidence) does not give rise to an unacceptable risk of breaching international law or authorizing a common law assault.
Ground 1: The court erred in holding that the revised policy in relation to the coercive questioning of detained persons who do not enjoy prisoner of war status is compatible with the United Kingdom's obligations under international law.
The applicable standard.
"All approaches described in this Annex [i.e. including the challenging approach] are compliant with this standard and are to be conducted in accordance with the prohibition against outrage upon personal dignity, humiliation, and degrading treatment." (Annex B, paragraph 2)
It may be that Annex B falls short of requiring UK armed forces to comply with Article 17 when employing the authorised approaches. However, this is immaterial for present purposes because the policy maintains that it is compliant with Article 17. Were that not the case, the policy would have been adopted under an error of law. Accordingly, in the review of the policy it is necessary to consider whether it does comply with the standard set in Article 17. This, once again, was not controversial at the hearing before us.
"The expression "to treat humanely" is taken from the Hague Regulations and from the two 1929 Geneva Conventions. The word "treatment" must be understood here in its most general sense as applying to all aspects of man's life. It seems useless and even dangerous to attempt to make a list of all the factors which make treatment "humane". The purpose of this Convention is simply to define the correct way to behave towards a human being, who himself wishes to receive humane treatment and who may, therefore, also give it to his fellow human beings. What constitutes humane treatment follows logically from the principles explained in the last paragraph, and is further confirmed by the list of what is incompatible with it. In this connection the paragraph under discussion mentions as an example, using the same wording as the Third Geneva Convention, any act of violence or intimidation inspired not by military requirements or a legitimate desire for security, but by a systematic scorn for human values (insults, exposing people to public curiosity etc.).
The requirement of humane treatment and the prohibition of certain acts incompatible with it are general and absolute in character, like the obligation enjoining respect for essential rights and fundamental liberties. They are valid "in all circumstances" and "at all times", and apply, for example, to cases where a protected person is the legitimate object of strict measures, since the dictates of humanity and measures of security or repression, even when they are severe, are not necessarily incompatible. The obligation to give humane treatment and to respect fundamental rights remain fully valid in relation to person in prison or interned, whether in territory of a Party to the conflict or in occupied territory. It is in such situation, when human values appear to be in greatest danger, that the provision assumes its full significance." (Pictet, Commentary on Geneva Convention IV, p. 204)
Pictet is here addressing the duty of humane treatment in both Common Article 3 and in Article 27 of Geneva IV. It is clear from his approach that he considers that humane treatment bears the same meaning in each provision. The "principles explained in the last paragraph to which he refers" are those set out in the first paragraph of Article 27, namely respect for the person, respect for honour, respect for family rights, respect for religious convictions and practices and respect for manners and customs.
"What Article 3 guarantees is humane treatment. Lengthy definition of expressions such as "humane treatment" or "to treat humanely" is unnecessary, as they have entered sufficiently into current parlance to be understood. It would therefore be pointless and even dangerous to try to enumerate things with which a human being must be provided for his normal maintenance as distinct from that of an animal or to lay down in detail the manner in which one must behave towards him in order to show that one is treating him "humanely", that is to say as a fellow human being and not as a beast or a thing. The details of such treatment may, moreover, vary according to circumstances particularly the climate and to what is feasible." (Pictet, Commentary on Geneva Convention I, p. 53)
"The Commentary to Geneva Convention IV explains that the delegations to the Diplomatic Conference of 1949 sought to adopt wording that allowed for flexibility, but, at the same time, was sufficiently precise without going into too much detail. For "the more specific and complete a list tries to be, the more restrictive it becomes". Hence, while there are four sub-paragraphs which specify the absolutely prohibited forms of inhuman treatment from which there can be no derogation, the general guarantee of humane treatment is not elaborated, except for the guiding principle underlying the Convention, that its object is the humanitarian one of protecting the individual qua human being and, therefore, it must safeguard the entitlements which flow therefrom." (at para. 49)
"It is in my view now apparent that whether or not treatment in interrogation can be regarded as unlawful will depend on whether it contravenes a prohibition on treatment which would be regarded as inhumane" (at para. 34)
I doubt that the judge was intending to limit the duty of humane treatment in the manner suggested. This passage in his judgment immediately follows his citation of Pictet's view that the duty of humane treatment and the prohibition of certain acts incompatible with it are general and absolute in character. However, be that as it may, I consider that the language and scheme of Common Article 3(1) clearly demonstrate that it gives rise to both a positive duty to accord humane treatment and a negative duty to abstain from inhumane conduct, certain examples of which are provided. The positive duty is general and not limited to abstaining from prohibited conduct.
"Article 31. General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
3. There shall be taken into account, together with the context:
(c) any relevant rules of international law applicable in the relations between the parties."
"All types of coercion on the part of those questioning in order to secure information from prisoners of war are prohibited. Article 17 expressly forbids the use of physical and mental torture as coercive measures. Physical coercion falling short of torture is also generally prohibited.
Article 17 does not mention any other kinds of influence apart from coercing prisoners of war in order to obtain information. The promise of privileges or the use of psychological tricks would not be in breach of Article 17 GCIII. This interpretation reflects the reality of armed conflicts, in which parties continue to try to obtain information from prisoners of war. However, psychological interrogation techniques which result in inhumane treatment are prohibited." (The Handbook of International Humanitarian Law, (2013) 3rd Ed., pp. 391-2.)
"While prisoners of war are entitled to certain rights as a matter of law and are entitled to be treated humanely as a matter of morals, it must be remembered that prisoners are captured soldiers and mature men accustomed to strict discipline and the rigors of military life. In such a life minor physical discomforts are not only permissible but are to be expected. The problem is at what point physical discomforts cease to be minor and become illegal coercion. This presents a question of fact which must be determined separately in each case. It is clear that some minor physical discomforts applied to all prisoners will not necessarily violate Article 17.
Some of the permissible physical discomforts might include the practice of making all prisoners stand during their interrogation or sit in an uncomfortable chair. Likewise, the use of bleak surroundings, such as a dimly lit room or an unusually bright one, could legitimately be employed as psychological weapons in the battle for military intelligence. These variables would comprise only a deprivation of ordinary luxuries of civilian life and thus would not be acts of overt coercion. Also, harsh tones of voice, a system of reward for cooperation, etc. are all devices which amount to nothing more than psychological cleverness in the age old art of interrogation. It must be noted, however, that "minor physical discomfort" encompasses only a lack of luxury, not deprivation of basic human needs, and certainly not any form of physical violence or threats." (Glod and Smith, Interrogation under the 1949 Prisoners of War Convention, Military Law Review (1968) 145 at p. 153.).
The conduct permitted by the policy
(1) The approach is not permitted to threaten, coerce, insult, humiliate or degrade
the captured person or put him in fear of violence.
(2) Physical contact with the captured person is prohibited.
(3) It is to be used only as a last resort, once one or more of the other approved
approaches has proved unsuccessful.
(4) It is not to be used against a prisoner of war or a vulnerable person.
(5) Its use in individual cases requires prior approval from the Interrogator
(6) The frequency of its application to an individual is limited.
(7) Its use is subject to monitoring, recording and review.
(1) Clear guidance is provided in training as to the proper limits of challenge direct. In this regard the court has considered the training materials and viewed the training video.
(2) The analogy with a drill sergeant has been abandoned.
(3) Whereas the title "harsh approach" was open to misinterpretation, the title of the new policy cannot suggest that unlawful, threatening or intimidatory conduct is permitted.
(4) Specific Ministerial approval is required before challenge direct may be approved for use in any operational theatre.
Prohibition on the application of the policy to prisoners of war
"Despite being fully consistent with Geneva Convention III Art 17, MoD policy direction is that the challenging approach is not to be used against those personnel who qualify for [prisoner of war] status; thereby mitigating the risk of a tactical questioner or interrogator inadvertently breaching this Geneva Convention." (Annex B para. 3)
Mr. Owen submits that the decision not to apply challenge direct in the case of prisoners of war is irrational since there is no material difference between the protection to be applied to them and to other captured persons. Accordingly, he submits, the application of the policy to captured persons who are not prisoners of war would violate the duty of humane treatment.
Ground 2: Further or alternatively, the court erred in holding that the policy and its application in Afghanistan (based on the available evidence) does not give rise to an unacceptable risk of breaching international law or authorizing a common law assault.
"We accept that no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of the two forms of control which the law provides. One is access, retrospectively, to judicial review if due process has been violated. The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects." (at paragraph 7)
"Although the court would not be invited to rule specifically upon the lawfulness of any particular use of the challenging approach that is put before the court, the court will be concerned to consider how the policy may be implemented in practice and whether the policy can be implemented lawfully (or alternatively without unreasonable risk of unlawfulness)." 
(1) There are many instances of abusive and insulting behaviour, accompanied by foul language, on the part of the interrogator. This abuse is generally directed at the captured person. In some instances it concerns his attitude towards his family. In one instance he is insulted in terms relating to his religion. In one instance a racist insult is used. It is difficult to assess the impact of these instances on the captured person. However, they involve a considerable loss of dignity on the part of the interrogators.
(2) In a number of instances captured persons are told that unless they co-operate with the interrogator they may be detained indefinitely or handed over to the Afghan authorities. They are also told that they will be liable to prosecution by the Afghan authorities and long terms of imprisonment. As Mr. Eadie pointed out in his submissions, the question whether these statements may properly be characterised as threats may well depend, in part, on legal issues such as the powers of detention of ISAF and the lawfulness of their delivering captured persons into the custody of the Afghan authorities. None of these matters has been argued before us. However, I note that in Serdar Mohammed v. Ministry of Defence  EWHC 1369 (QB) Leggatt J. held that detention of a captured person by UK forces beyond the maximum of 96 hours permitted by ISAF (International Security Assistance Force) policy was unlawful under Afghan law and international law. An appeal to this court is pending.
(3) There were instances of physical intimidation.
It is clear that, at the least, many of these matters would constitute breaches of the general policy of the MoD in relation to the treatment of captured persons.
(1) The interrogator held the hand of the captured person during the use of challenge direct. This was a breach of the prohibition on physical contact. However, this was not limited to the use of contact direct and continued for over 30 minutes throughout the session.
(2) The interrogator slammed the desk with his hand.
(3) The interrogator slammed the wall with his hand.
(4) The use of challenge direct very substantially exceeded the maximum duration permitted. It has been suggested on behalf of the Secretary of State that this is an instance of the firm approach as opposed to challenge direct. However, even when allowance is made for differences in subjective assessment of the degree of severity of the approach, I am clear that this was a use of challenge direct and that it lasted too long.
(5) The captured person was threatened that he would be handed over to "someone else".
(6) The most striking example of a breach of the policy is this occasion when the interrogator suddenly moved forward from a crouching position so that his face was right in front of the captured person's. This was physically intimidating.
(7) The use of challenge direct was accompanied by vulgar abuse.
(8) Insulting words were used throughout the interview which continued through the challenge direct.
LORD JUSTICE RYDER :
LORD JUSTICE TOMLINSON :