Equality and Human Rights Commission v Prime Minister & Ors  EWHC 2401 (Admin) (3 October 2011)
The High Court of England and Wales has partially upheld claims by the Equality & Human Rights Commision and Mr Al Bazzouni (a former detainee) that Government guidance regarding what British intelligence officers should do if they suspect detainees being interviewed overseas are at risk of torture or cruel, inhuman or degrading treatment is unlawful. The High Court held that although the proposed difference between “serious” and “real” risk of torture or ill-treatment was merely academic (both requiring the officer to make a judgment call) and hooding may in some circumstances fail to constitute torture or ill-treatment, the reference to hooding as potentially excepted from the definition of ill-treatment in an Annex to the Guidance should be removed.
On 6 July 2010, the UK Prime Minister announced in Parliament his intention to establish an independent inquiry about the degree to which British intelligence officers working with foreign security services may have been implicated in the improper treatment of detainees held by other countries in the aftermath of the events of 11 September 2001.
At the same time, the Government published a document entitled Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (‘the Guidance’).
The Guidance “sets out the principles, consistent with UK domestic law and international law obligations, which govern the interviewing of detainees overseas” and states that “personnel whose actions are consistent with this guidance have good reason to be confident that they will not risk personal liability in the future.” 
The EHRC and Mr Al Bazzouni as claimants each contended that the Guidance may cause those acting in compliance with its instructions to act unlawfully.
The court addressed the following legal questions:
(a) Did the claims raise academic questions which the court should not entertain?
The guidance requires intelligence officers to consider whether the detainee or individual faces “a serious risk of torture at the hands of a third party”  before interviewing them or soliciting their detention and, if so, not to proceed.
The EHCR asserted that a “serious risk” constituted a lower legal threshold than a “real risk”, the proper legal test for secondary criminal liability, exposing officers to potential criminal liability for their actions when interviewing detainees. However, the court held that in this context there is no material distinction between a “serious risk” and “real risk” of torture or ill-treatmebt taking place, stating:
The context is that the document is intended to give practical guidance to intelligence officers on the ground. It is not a treatise on English criminal law. What matters is how the document would be read and applied by individual intelligence officers, not how it would fare at the Law Commission or in a University Graduate Law School. The document makes clear that, in all relevant instances other than where there is no serious risk of CIDT (section 2 of the table), the officer must not proceed at all (section 1) or the matter must be referred to senior personnel or Ministers. 
An Annexe to the guidance provides a non-exhaustive list of types of treatment that could constitute ill-treatment, including at section d(iii):
methods of obscuring vision or hooding (except where these do not pose a risk to the detainee’s physical or mental health and is necessary for security reasons during arrest or transit). 
Mr Al Bazzouni challenged the lawfulness of the exception stated in section d(iii), arguing that hooding of detainees will always constitute torture or ill-treatment and thus be unlawful. In relation to this, the court held that -
The extended debate about whether hooding would be an assault, battery, infringement of Article 3 of the Convention or other illegality is largely beside the point. It may possibly be that, in certain factual circumstances, hooding might conceivably be none of these, although the nature of hooding and its prohibition must mean that it very often would be. 
However, the court held that because the “series of difficult and confusing judgments which the exception in d(iii) of the Annex requires for its conceivably lawful operation is too great to expect officers on the ground to give effect to it without risking personal liability… d(iii) of the Annex should be changed to omit hooding from the ambit of the exception.”
In sum, although the court did not make a declaration or grant other substantive belief, its call for removal of the reference to hooding in section d(iii) of the Annex to the guidance is a minor victory, despite the fact that the court agreed that circumstances may exist in which hooding could be legal.
(b) Did the ECHR have standing to appear in the matter?
The court determined that the ECHR has standing to appear in the matter as, by section 3 of the Equality Act 2006, it must exercise its functions with a view to encouraging and supporting the development of a society in which there is, among other things, respect for and protection of each individual’s human rights and, by section 30, it has capacity to institute judicial review proceedings relevant to a matter in connection with which it has a function. 
Relevance to the Victorian Charter
Although this decision does not have direct application to the Victorian Charter, it may be regarded by local courts as instructive when interpreting section 10 of the Charter of Human Rights and Responsibilities Act 2006, which recognises a right to protection from torture and cruel, inhuman or degrading treatment, and section 22, which recognises a right to humane treatment when deprived of liberty.
The High Court dismissed both the Claimants’ and Defendants’ lengthy appeals to domestic criminal law, deciding the matter on the basis of practical rather than academic concerns.
The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2401.html
Bethany King is a volunteer with the Human Rights Law Centre.