QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
- and –
Mr Justice Collins
| Haidar Ali Hussein
|- and -
|Secretary of State for Defence
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Mr Richard Whittam Q.C., Mr Samuel Wordsworth & Ms Amy Sander (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 18 & 19 December 2012
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Mr Justice COLLINS :
"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. The '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 Conventions."
"As a minimum, without prejudice to the legal status of a Detained Person, apply the standards articulated in Common Article 3 to the Geneva Conventions. Where other standards are applicable, they must be applied."
In the Joint Doctrine Publication 1-10, Captured Persons, second edition, October 2011, following publication of Sir William's report, it is made clear that all CPERS must be treated humanely in all circumstances and at all times. Minimum standards of humane treatment are identified. That approach has been maintained.
"2. As a matter of policy and by law, UK Armed Forces will as a minimum treat 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 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 Convention III Art17 prohibits attempts to extract information of military value; nor does it prevent deception or persuasion, both processes which are regarded as entirely legitimate."
"… each aims to refocus the CPERS attention to 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) 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 onto the process, but only from the front and never in 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 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 behaviour. 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 Challenging Direct approach within Tactical Questioning and Interrogation is subject to the specific constraints detailed in paragraph 6."
Challenge Indirect is identified thus:-
"(2) 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 into 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."
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 kinds, 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."
"No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties."
"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 unpleasant or disadvantageous treatment of any kind."
"22….Our concern, therefore, lies in the clash of values and the balancing of conflicting values. The balancing process results in the rules for a 'reasonable interrogation'. These rules are based, on the one hand, on preserving the 'human image' of the suspect and on preserving the 'purity of arms' used during the interrogation. On the other hand, these rules take into consideration the need to fight the phenomenon of criminality in an effective manner generally, and terrorist attacks specifically. These rules reflect 'a degree of reasonableness, straight thinking [right-mindedness] and fairness'. The rules pertaining to investigations are important to a democratic state. They reflect its character. An illegal investigation harms the suspect's human dignity. It equally harms society's fabric.
23. It is not necessary for us to engage in an in depth inquiry into the 'law of interrogation' for the purposes of the application before us. These vary from one matter to the next. For instance, the law of interrogation, as it appears in the context of an investigator's potential criminal liability, as opposed to the purpose of admitting evidence obtained by questionable means. Here, by contrast, we deal with the 'law of interrogation' as a power activated by an administrative authority. The 'law of interrogation' by its very nature, is intrinsically linked to the circumstances of each case. This having been said, a number of general principles are nonetheless worth noting. First, a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever. There is a prohibition on the use of 'brutal or inhuman means' in the course of an investigation. Human dignity also includes the dignity of the subject being interrogated. This conclusion is in perfect accord with (various) international law treaties – to which Israel is a signatory – which prohibit the use of torture, 'cruel, inhuman treatment' and 'degrading treatment'. These prohibitions are 'absolute'. There are no exceptions to them and there is no room for balancing. Indeed, violence directed at a suspect's body or spirit does not constitute a reasonable investigation practice. The use of violence during investigations can potentially lead to the investigator being held criminally liable. Second, a reasonable investigation is likely to cause discomfort; it may result in insufficient sleep; the conditions under which it is conducted risk being unpleasant. Indeed, it is possible to conduct an effective investigation without resorting to violence. Within the confines of the law, it is permitted to resort to various machinations and specific sophisticated activities which serve investigators today (both for the police and GSS); similar investigations – accepted in the most progressive of societies – can be effective in achieving their goals. In the end result, the legality of an investigation is deduced from the propriety of its purpose and from its methods. Thus, for instance, sleep deprivation for a prolonged period, or sleep deprivation at night when this is not necessary to the investigation time-wise may be deemed a use of an investigation method which surpasses the least restrictive means."
"… getting within an individual's internal space, within 2 or 3 inches of the face. It involves shouting loudly and aggressively and that, in essence, is the harsh. It is a technique not entirely designed to elicit a response from the detainee. It is more a technique that seeks to shock the detainee initially."
While violence of any sort was ruled out, threats of the possible consequences to non-cooperation to the detainee's family or of detention for a long period were acceptable.
The harsh approach should no longer have a place in tactical questioning. The MoD should forbid tactical questioners from using what is currently known as the harsh approach and this should be made clear in the tactical questioning policy and in all relevant materials.
The MoD's recent review of the harsh approach is welcome. But even as amended by the proposed new parameters and terminology, the risks of using the harsh approach in tactical questioning will remain and are too great.
To the extent that the MoD considers that the harsh approach can still lawfully be used in interrogation:
(1) there is a need for very clear guidance within the interrogation policy and in training as to the proper limits of the harsh approach;
(2) the approach should be given a label which is less apt to be misinterpreted as permitting unlawful, threatening or intimidatory conduct;
(3) the approach should not include an analogy with a military drill sergeant; and
(4) in the light of the legal and other risks in the use of the harsh approach, specific Ministerial approval should be sought before the harsh approach is approved for use in any operational theatre. "
"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 of ensuring that such training is adhered to. For instance, the parameters for the 'loud harsh' prohibits 'intimidation' and 'coercion' of any kind. This will involve a questioner/interrogator in treading a fine line between what is legitimate and what is intimidation or coercion. It will also involve some subjective judgment by the instructions of the subject of the questioning and interrogation …"
In his view, the risk remained and in any event for any amended approach Ministerial approval should be obtained.
"The expression "to treat humanely" is taken from the Hague Regulations and from the two 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 persons in prison or interned, whether in the territory of a Party to the conflict or in occupied territory. It is in such situations, when human values appear to be in greatest danger, that the provision assumes its full significance."
The 'principles explained in the last paragraph' cover respect for the person, respect for honour, respect for family rights, respect for religious convictions and respect for manners and customs.
"Exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects, unfairness etc. the imposition of unreasonable or unjust burdens." (see R v Furlong  QB 426).
In R v Mushtaq  1 WLR 1513 in paragraph 64 Lord Carswell said that oppression would be constituted by "questioning which by its nature, duration or other circumstances (including the fact of custody) excites hopes (such as hope of release) or fears, or so affects the mind of the subject that his will crumbles and he speaks when otherwise he would have stayed silent." None of these observations seem to me to show that any real oppression exists in the proper use of Challenge Direct.
Lady Justice Hallett: