UK High Court decision in Afghan detention case

Mr Justice Leggatt

No, it's not about military justice, but almost certainly of interest to military practitioners: Mr Justice George Leggatt of the UK High Court has handed down a lengthy and already controversial ruling that the Ministry of Defence acted illegally in holding Afghan prisoners for more than 96 hours. According to this report in the Daily Mail:

The 117-page High Court ruling by Mr Justice Leggatt means that the European Convention on Human Rights, and the UK’s Human Rights Act, which made the convention part of British law, apply wherever British troops are fighting. 

The judge said that by detaining Taliban leader Serdar Mohammed for 106 days beyond the legal 96-hour limit, Britain had breached his right to liberty. 

Taxpayers will now have to pay compensation running into tens of thousands to Mohammed and three other captives involved in the case.

The ruling also opens the way for many other Afghan detainees to sue for compensation, with British law firms likely to be queuing up to help them.

There will also be high legal costs for the taxpayer. Two legal firms represented the Taliban prisoners on no-win no-fee deals, and the case involved 11 barristers. The MoD is likely to face a six-figure bill.

 The Guardian reported:

In a devastating passage, the judge said his conclusion that [Mohammed's] detention after 96 hours was unlawful "will not come as a surprise to the MoD". It was apparent from documents he had seen that the MoD formed the view at an early stage that there was no legal basis on which UK armed forces could detain individuals in Afghanistan for longer than the maximum 96 hours authorised by international Nato-led troops in Afghanistan.

Leggatt added: "Legal advice also confirmed that there was no basis upon which UK forces could legitimately detain individuals for longer periods in the interest of interrogating them because they were believed to have information of intelligence value."

As the MoD itself recognised in a memo in 2006, "the reality of the legal basis for our presence in Afghanistan is such that available powers may fall short of that which military commanders on the ground might wish."

Leggatt noted: "Nothing happened subsequently to alter that reality."