QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
| The Queen (on the application of Maya Evans)
|- and -
|Secretary of State for Defence
James Eadie QC, Sir Michael Wood, Marina Wheeler and Karen Steyn (instructed by The Treasury Solicitor) for the Defendant
Khawar Qureshi QC and Kieron Beal (instructed by The Special Advocates Support Office of the Treasury Solicitor) as Special Advocates
Hearing dates: 19-23 and 26-29 April 2010
Crown Copyright ©
|THE BROAD FACTUAL CONTEXT||14-24|
|THE HISTORY OF TRANSFERS: SUMMARY||25-37|
|THE NATIONAL DIRECTORATE OF SECURITY (THE NDS)|
|Status of the NDS||38-39|
|Role of the NDS||40-42|
|Transfer of detainees to the NDS||43-48|
|Independent reports on the NDS||49|
|The Afghan Independent Human Rights Commission (AIHRC)||50-57|
|United Nations reports||58-65|
|UK knowledge of allegations of mistreatment by the NDS||76-84|
|Evidence of changes within the NDS||85-90|
|THE MoU AND RELATED ASSURANCES||91|
|Background to the Memorandum of Understanding (MoU)||92-94|
|The MoU in outline||95-99|
|MoUs with other ISAF states||100-104|
|The Exchange of Letters (EoL)||105-112|
|The NDS and the MoU/EoL||113-128|
|Dr Saleh's letter of 25 March 2010||129-131|
|IMPLEMENTATION OF THE TRANSFER ARRANGEMENTS||133|
|Transfer to third party state||134-135|
|Access by the AIHRC and other independent bodies||136-140|
|UK visits to detainees||141-144|
|NDS Lashkar Gah||145-161|
|Record-keeping and notifications of change||171-180|
|Transfers between NDS facilities||181-183|
|Recent and future developments relevant to monitoring||184-186|
|SPECIFIC ALLEGATIONS BY UK TRANSFEREES||187|
|Prisoner X: NDS Lashkar Gah||188-195|
|Prisoner A: NDS Kabul||196-199|
|Prisoner B: NDS Kabul||200-201|
|Prisoner C: NDS Kabul||202-203|
|Prisoner D: NDS Kandahar/Kabul||204-208|
|Prisoner E: NDS Lashkar Gah||209-215|
|Prisoner G: NDS Lashkar Gah||216-217|
|The NDS's investigations and report||218-224|
|Recent allegations made to an Afghan judge||225-226|
|THE CANADIAN MATERIAL||227-235|
|THE LEGAL FRAMEWORK FOR THE ISSUE BEFORE THE COURT||236-250|
|THE CLAIMANT'S SUBMISSIONS||251-267|
|THE SECRETARY OF STATE'S SUBMISSIONS||268-286|
|DISCUSSION AND CONCLUSIONS||287-327|
Lord Justice Richards :
THE BROAD FACTUAL CONTEXT
"1.2 This Policy Statement, which is to be observed whenever UK Armed Forces undertake detention in an operational theatre reflects the importance which I attach to ensuring the humane treatment of those it is necessary to detain in the course of our operations.
2.1 This policy applies across the MOD and the Armed Forces and to all detention activities undertaken in military theatres of operation. It sets out the minimum standards which must be applied.
3.1 I require the Ministry of Defence and Armed Forces to:
(f) Ensure that Detained Persons are not transferred from UK custody to any nation where there is a real risk at the time of transfer that the Detained Person will suffer torture [or] serious mistreatment ."
THE HISTORY OF TRANSFERS: SUMMARY
THE NATIONAL DIRECTORATE OF SECURITY (THE NDS)
Status of the NDS
Role of the NDS
Transfer of detainees to the NDS
Independent reports on the NDS
United Nations reports
"The independent expert notes that there are multiple security institutions managed by the National Security Directorate, the Ministry of the Interior and the Ministry of Defence, which function in an uncoordinated manner, lack central control and have no clear mechanisms of formal accountability. The independent expert has received complaints regarding serious human rights violations committed by representatives of these institutions, including arbitrary arrest, illegal detention and torture. He draws attention to the Kakchul case, in which an individual was detained, allegedly tortured and died in custody in November 2004 and which requires a thorough, transparent and public investigation".
"Over the past two years, Amnesty International has received repeated reports of torture and other ill-treatment of detainees by the NDS from alleged victims and their relatives, as well as a range of organisations including UN agencies. The organisation is gravely concerned [that in] the absence of effective investigations and prosecution of those responsible, a culture of impunity persists with victims having little hope of justice or redress. "
No specific case of torture of a person transferred from ISAF to the NDS is mentioned. Chapter 6 of the report registers Amnesty's concern that the reported patterns of NDS abuse remain difficult to monitor effectively. Among the report's recommendations to ISAF was an immediate moratorium on further transfers, and among the recommendations to the Afghan government was reform of the NDS to ensure that its operations were properly regulated in transparent legislation, which separated the functions of custody and interrogation, and put an end to human rights violations by NDS officials.
UK knowledge of allegations of mistreatment by the NDS
"Despite the limitations, we are not aware of any reports of mistreatment at Lashkar Gah and the prisoners we have visited have all appeared to be in good health. Furthermore, the NDS appear to have a semblance of a system for handling people Against this, however, it should be borne in mind that all convictions in Helmand are obtained on the basis of confession evidence, and the rule of law is considered the weakest sector within plans for the development of governance within the province. We therefore need a sense of balance in that the positive indicators above are against a pretty woeful backdrop insofar as respect for human rights and respect for the judicial process is concerned."
Evidence of changes within the NDS
THE MoU AND RELATED ASSURANCES
Background to the MoU
The MoU in outline
"Ensure that Participants will observe the basic principles of international human rights law such as the right to life and the prohibition on torture and cruel, inhumane and degrading treatment pertaining to the treatment and transfer of persons by the UK [armed forces] to Afghan authorities and their treatment."
The second purpose reiterates one of the three recitals set out in the MoU's preamble.
"will be responsible for treating such individuals in accordance with Afghanistan's international human rights obligations including prohibiting torture and cruel, inhumane and degrading treatment, protection against torture and using only such force as is reasonable to guard against escape. "
The Afghan authorities are also to ensure that any detainee transferred to them will not be transferred to the authority of another state, including detention in another country, without the prior written agreement of the United Kingdom.
MoUs with other ISAF states
The Exchange of Letters (EoL)
"It is the undertaking of the undersigned that the aforementioned bilateral arrangements are to be interpreted as permitting officials from each undersigned government (including officials from our respective Embassies, members of our armed forces, and others duly authorised to represent our governments) to enjoy access to Afghan detention facilities to the extent necessary to ascertain the location and treatment of any detainee transferred by that government to the Government of Afghanistan. On request, an official from one of the undersigned governments may interview in private any detainee transferred by that government to the custody of Afghan authorities. Access to Afghan facilities is to be permitted to organisations that are already afforded access under that government's bilateral arrangements with the Government of Afghanistan including, where applicable, the International Committee of the Red Cross and Red Crescent (ICRC), relevant human rights institutions within the UN system, and the Afghan Independent Human Rights Commission (AIHRC)."
Thus an important advance on the UK-Afghanistan MoU was the express right to conduct private interviews.
The NDS and the MoU/EoL
Dr Saleh's letter of 25 March 2010
"[N]o detainee transferred to the NDS by the British Armed Forces will be transferred to any other facility belonging to the NDS or other Afghan authority without notification of the British Embassy in Kabul. In the unlikely event that the NDS wished to transfer a detainee to any other state, it would seek the prior written agreement of the United Kingdom via the British Embassy in Kabul.
[T]he NDS will allow representatives of the British Government, including members of the British Armed Forces, full access in private to any detainee transferred to the NDS by the British Armed Forces while such persons are in custody of the NDS. The NDS will also notify the British Embassy in Kabul promptly of any allegations of ill-treatment made by any detainee transferred to the NDS by British Armed Forces; will investigate promptly any such allegations or, at the request of the British Armed Forces, any allegations made to them; and will keep the British Armed Forces informed of the progress and outcome."
The letter closed with a summary of UK responsibilities to treat all detainees in accordance with applicable international human rights law, to respect the laws, regulations, customs and traditions of Afghanistan as far as these were compatible with the United Kingdom's mission to support the ISAF and Operation Enduring Freedom missions, and to help NDS investigate potential criminal offences by sharing information or evidence with the NDS which might be relevant.
IMPLEMENTATION OF THE TRANSFER ARRANGEMENTS
Transfer to third party state
Access by the AIHRC and other independent bodies
UK visits to detainees
UK visits: NDS Lashkar Gah
UK visits: NDS Kandahar
UK visits: NDS Kabul
UK visits: non-NDS prisons
Record-keeping and notifications of change
Transfers between NDS facilities
Recent and future developments relevant to monitoring
THE ALLEGATIONS BY UK TRANSFEREES
Prisoner X: Lashkar Gah
Prisoner A: NDS Kabul
Prisoner B: NDS Kabul
Prisoner C: NDS Kabul
Prisoner D: NDS Kandahar/Kabul
Prisoner E: NDS Lashkar Gah
Prisoner G: Lashkar Gah
The NDS's investigations and report
Recent allegations made to an Afghan judge
THE CANADIAN MATERIAL
i) Proceedings for judicial review were brought in the Federal Court of Canada in February 2007 by Amnesty International Canada and the British Columbia Civil Liberties Association, for whom Mr Attaran acted as counsel, alleging that Canadian forces were acting unconstitutionally in making such transfers because transferees were placed at substantial risk of torture. The claim was ultimately rejected on jurisdictional grounds, with the result that the court did not hear full testimony from government witnesses or receive full disclosure of government records. Further, a motion for an interlocutory injunction was dismissed by Mactavish J in a reasoned decision of 7 February 2008. That decision nevertheless contains a helpful summary of the evidence led by the applicants (though we do not accept that these were "findings of fact" by the judge).
ii) Also in February 2007, the Military Police Complaints Commission announced an investigation into a complaint by the same bodies that on at least 18 occasions detainees had been transferred to Afghan authorities notwithstanding evidence of a substantial risk of torture. Mr Attaran blames government obstruction for the fact that proceedings before the Commission were adjourned for a long time. In his second statement, however, he informs the court that hearings before the Commission have now resumed.
iii) The issue was taken up by the press, notably in articles in The Globe and Mail from April 2007 onwards.
iv) In November 2009 the House of Commons Special Committee on the Canadian Mission in Afghanistan ("the Afghanistan Committee") commenced hearings into the transfer of detainees and heard evidence from many witnesses. The hearings continue.
"His colleagues at the NDS, on the other hand, sometimes need to get rough with their subjects, he added.
'In these cases, these people need some torture, because without torture they will never say anything', Col. Saddiqui said.
Sadullah Khan, Kandahar NDS chief, initially denied all allegations of torture during a telephone interview last week. After repeated questions, however, Mr Khan acknowledged that minor mistakes may have occurred during interrogations.
'We never beat people', the NDS chief said. 'Maybe small things happened, but now we're trying to leave those things behind."
" [In] the critical days after a detainee had been transferred to the Afghan intelligence service, nobody was able to monitor them.
During those crucial first days, what happened to our detainees? According to a number of reliable sources, they were tortured.
The most common forms of torture were beating, whipping with power cables, and the use of electricity. Also common was sleep deprivation, use of temperature extremes, use of knives and open flames, and sexual abuse that is, rape. Torture might be limited to the first days or it could go on for months.
According to our information, the likelihood is that all the Afghans we handed over were tortured. For interrogators in Kandahar, it was standard operating procedure."
THE LEGAL FRAMEWORK FOR THE ISSUE BEFORE THE COURT
"In cases which rest not on a personal risk of harm (for example, where the police or prison staff would have cause to target a claimant) but on a risk of serious harm said to face people generally, for example in this case all persons detained pending trial, it cannot be said that they would face a real risk of serious harm unless in that country there is a consistent pattern of gross and systematic violations of their human rights whilst in detention."
The tribunal emphasised that the "gross and systematic" standard was not chosen arbitrarily but was to be found in international legal instruments, including article 3 of the 1984 UN Convention against Torture.
"37. I want to add a word, however, about the evaluation of conditions which are alleged to create a real risk of inhuman treatment. The authority of this court has been lent, through the decision in Hariri, to the formulation that ill-treatment which is 'frequent' or even 'routine' does not present a real risk to the individual unless it is 'general' or 'systematic' or 'consistently happening' .
38. Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it. If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. The exegetic language in Hariri suggests a higher threshold than the IAT's more cautious phrase in Iqbal, 'a consistent pattern', which the court in Hariri sought to endorse.
39. There is a danger, if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language and in law something distinctly less than a probability, and it cannot be elevated by lexicographic stages into something more than it is."
"114. I do not consider that these decisions establish a principle that assurances must eliminate all risk of inhuman treatment before they can be relied upon. It is obvious that if a state seeks to rely on assurances that are given by a country with a record for disregarding fundamental human rights, it will need to show that there is good reason to treat the assurances as providing a reliable guarantee that the deportee will not be subject to such treatment. If, however, after consideration of all the relevant circumstances of which assurances form part, there are no substantial grounds for believing that a deportee will be at real risk of inhuman treatment, there will be no basis for holding that deportation will violate article 3.
115. That said, there is an abundance of material that supports the proposition that assurances should be treated with scepticism if they are given by a country where inhuman treatment by state agents is endemic. This comes close to the 'Catch 22' proposition that if you need to ask for assurances you cannot rely on them. If a state is unwilling or unable to comply with the obligations of international law in relation to the avoidance and prevention of inhuman treatment, how can it be trusted to be willing or able to give effect to an undertaking that an individual deportee will not be subject to such treatment?"
THE CLAIMANT'S SUBMISSIONS
i) The MoU was entered into without any clear idea of how it was to be implemented. It had not been decided at the time of the MoU that transfers would be made to the NDS, and various options were subsequently considered.
ii) It was not intended to be a public document and it lacked the transparency needed if it was to create any form of public accountability.
iii) The Afghan signatory of the MoU was the Minister of Defence. There is no evidence that he was speaking or thought that he could speak on behalf of the NDS, or that the NDS accepted that it was covered by the MoU. On the contrary, the Minister of Defence made clear that he had no jurisdiction or control over other ministries or agencies and that he could not take responsibility for the welfare of detainees being guarded and managed by others; and the stance subsequently taken by the NDS itself was that it had not been consulted in the drafting of the MoU and it did not recognise the authority of the Minister of Defence to promise anything on its behalf. Further, if the NDS was covered by or had committed to these arrangements, one would expect it to have disseminated instructions referring to them and calling on its personnel to act in accordance with them, but there is no evidence of any such instruction.
iv) When the EoL was entered into with a view to obtaining additional assurances, the Afghan signatory on this occasion was Dr Rassoul, the National Security Advisor. Again the NDS was not a party. Moreover, although Dr Rassoul's letter stated that the NDS would issue written instructions about the agreed access and visiting procedures, there is no evidence that any such instructions were issued.
v) Even on the basic issue of torture and serious mistreatment, the MoU is vague and insufficient in its terms, providing only that the Afghan authorities "will be responsible for" treating transferees in accordance with Afghanistan's international human rights obligations, including the prohibition of torture etc.
vi) Although the MoU contained provision for UK personnel to have "full access" to transferees, it did not make specific provision for private access, a requirement to which express reference was first made in the EoL.
vii) Neither the MoU nor the EoL provides for some of the basic safeguards identified by the UN Special Rapporteur in his September 2004 report (see  above). Para 41 of the report states, as regards guarantees for individuals deprived of their liberty, that assurances obtained from countries to which such persons are handed over should as a minimum include provisions with respect to prompt access to a lawyer, recording (preferably video-recording) of all interrogation sessions and recording of the identity of all persons present, prompt and independent medical examination, and forbidding incommunicado detention or detention at undisclosed places.
viii) A further fundamental weakness of the arrangements is that they do not address the important issue of proper investigation of complaints when made.
i) The history of access has been incapable of providing any reassurance of proper treatment of transferees. A view expressed by the FCO just before transfers commenced was that careful monitoring of the first few cases would provide an insight into whether the systems and procedures were functioning effectively. Yet in practice there were no visits at all for many months. Thereafter, although access was in general unproblematic until recently at NDS Lashkar Gah, there have been serious problems at NDS Kabul. Access has been patchy even when not deliberately refused. There were no visits to NDS Kabul from October 2008 until this year (following the transfer of the one detainee there in February 2010). The recent problems concerning access at Lashkar Gah evidence once again the fragility of the monitoring arrangements and are inconsistent with the suggestion of a commitment to access arising from the MoU/EoL. General Naim was in charge of Lashkar Gah for much of the relevant period, but he evidently did not get the point of the access arrangements. The refusal of access was a position deliberately adopted even while transfers and access arrangements were under the spotlight of legal proceedings in this court.
ii) Further, access has been of limited value because there have been no private interviews of detainees at NDS facilities, despite the fact that this was one of the points of the EoL; and the recent interview practice at Lashkar Gah, when access has been provided, underlines the unsatisfactory nature of the arrangements and illustrates how the NDS is allowed to dictate matters. Interviews have also been cursory. The kinds of visits that have taken place have not been suited to the eliciting of complaints where ill-treatment has occurred and cannot plausibly be relied on as providing protection against the use of torture to secure confessions. By contrast, visits to detainees in prisons outside NDS control and away from the NDS environment have produced credible allegations of previous ill-treatment while in NDS custody; but prison visits themselves have been sporadic and accidental and are not an adequate safeguard. A further deficiency, in relation to all visits, is that UK officials have not been accompanied by persons suitably qualified to detect signs of torture when complaints are made.
iii) There have been occasions when the ICRC and AIHRC have themselves been denied access despite the provision for it in the MoU. In any event, the UK cannot rely on visits by the ICRC since it is precluded by obligations of confidentiality from passing the information on to the UK (as to which, see also para 146 of the judgment in Saadi v Italy, cited above); and the AIHRC cannot have been making regular visits to individual detainees, since otherwise relevant material would have been included in the disclosed documents. None of the outside organisations picked up the allegations by UK transferees which are now accepted by the UK to be credible.
iv) There has been a clear failure by the NDS to comply with the obligations under the MoU to keep an accurate record of all transferees, including a record of transfer to an alternative facility, and to notify the UK prior to the initiation of criminal proceedings and prior to release. The NDS has failed to provide any information on a proactive basis. The difficulties experienced by the UK in tracking transferees have been considerable. There have been repeated problems in locating transferees, and internal transfers and releases have taken place without notification: the statement in the ministerial Q&A document of 31 October 2007 that there are "robust mechanisms in place" to ensure accurate recording has at no time been correct. These problems have contributed to the failure to secure regular visits of transferees. The grid prepared during the course of the hearing, showing where individual transferees were held at particular times, had to be pieced together from information in the various monitoring reports and is incomplete even now; whereas, if the MoU had been working properly, a full and complete picture for all transferees would have been readily available. The explanation given for some of these difficulties that the Afghans assign prisoners their own reference number when they enter the system and cannot always easily identify which prisoners the UK wishes to see provides an additional reason for concern. It shows that UK transferees are not dealt with by the NDS separately from other detainees and that the MoU simply has no significance from the point of view of the NDS.
THE SECRETARY OF STATE'S SUBMISSIONS
DISCUSSION AND CONCLUSIONS
i) The allegations have been investigated conscientiously by UK officials, but such investigations have been subject to inevitable limitations. The lapse of time between the alleged ill-treatment and the making of the complaint makes it less likely that any corroborative physical marks would be found. In any event, by no means all the ill-treatment alleged including electric shock treatment would necessarily leave physical marks. Moreover those carrying out the investigations, including medically qualified personnel, have lacked full expertise in the examination of alleged torture victims. Just as importantly, whilst it has been possible to obtain some relevant evidence from persons other than the detainee himself (for example, from the UK escort in the case of prisoner E), it has not been possible to question NDS staff or pursue wider inquiries within the NDS facility.
ii) The investigations carried out by the NDS have been clearly inadequate, in so far as one can judge them from the NDS's reports of the outcome of such investigations. In particular, we accept Mr Fordham's criticisms of the recent written report.
iii) Whilst we can look at the available material and consider, for example, the extent to which the allegations made are supported or contradicted by the medical or other evidence, and the extent of internal inconsistencies in the statements made, we do not even have the benefit of any first-hand impression of the complainants to aid us in determining credibility.
iv) Some of the abusive techniques alleged by the complainants strike a chord with repeated concerns expressed in the independent reports and with at least one highly credible allegation in the Canadian material (the November 2007 incident where the instruments allegedly used were found in the interview room). Neither collusion nor widespread coincidental fabrication of accounts seems to be a likely explanation.