Happy New Year to all of our readers and subscribers from all of us here at the Law Lessons 4 Life Team!
We really value our readership and would like to thank you for coming back to our site time and time again. We have been out of action for more than a year, but we are starting 2023 by highlighting some of our favourite older cases from one of our favour legal blogs, the UK Human Rights Blog. If you are not already following or subscribed to them, please do, they are an excellent team who publish great intellectual content and breakdowns of UK cases and one of our inspirations when it comes to legal blogging. with a really interesting Human Rights case. We will be having a new case every week, so stay tuned. For now, here’s Mohamed and Others…
Stephanie, LL4L
What’s it all about? In this case, the Court of Appeal unanimously decided that the MoD was potentially liable both in terms of public law and private law for the failures to make arrangements for extended detention and to put in place the procedural safeguards required by article 5 ECHR. The MoD breached Afghan law and article 5 by detaining a Taliban commander (SM) for more than 96 hours. Particularly problematic was the lack of any periodic, impartial and objective review of detention. SM had been detained arbitrarily.
The practice and procedure of detention by UK forces in Afghanistan beyond that time limit was not authorised by Afghan law, by UN Security Council Resolution 1890 or by international humanitarian law.
The UK had stepped outside of what was properly attributable to the United Nations and what the UN authorised because the UK’s detention policy was significantly different to that of ISAF, which only allowed for 96 hours’ detention. The UK implemented its policy in a manner that was, for practical purposes, independent of the ISAF chain of command.
The court rejected the argument that the defence of ‘act of state’ could head off the claim in tort. SM’s detention was unlawful as a matter of Afghan law, and so a private claim in tort under Afghan law could in principle be brought in England and Wales.
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